On June 30, 2015, CADE published a new resolution (Resolution
nº 13/2015) establishing procedural rules for the assessment of gun jumping conducts relating to transactions
under CADE's scrutiny and to transactions that should have been submitted to
CADE's review but were not. Gun jumping cases will be assessed by CADE under a specific
procedure named APAC - Administrative Proceeding to investigate Merger Control.
In the event gun jumping is verified, the merits of CADE's decision may be suspended
until a final decision on the APAC is issued. Gun jumping conducts subject the
parties to fines that can range from BRL 60,000.00 (approximately USD20,000.00) to
BRL 60 million (approximately USD20 million), in addition to the annulment of
pre-merger coordination acts; and the opening of an administrative proceeding
to investigate the parties’ behavior since the signing of the transaction
The APAC was also the proceeding chosen by CADE to
request that companies submit transactions that originally were not subject to
mandatory antitrust approval in Brazil. Companies requested by CADE to submit
non-reportable transactions can appeal from CADE's request.
APACs can be initiated ex offício by the General Superintendent or upon the request of any
member of CADE's Tribunal or third interested parties.
Finally, Resolution nº 13/2015 has reestablished the
so called Reversibility Agreement (APRO), which was often used by CADE during the
term of Brazil's former antitrust law to secure the reversibility of
transactions under CADE's review. Since the establishment of Brazil's
pre-merger control regime, APROs have become unnecessary. Now, with the
introduction of the APACs dealing with situations in which there is still
uncertainty regarding to the need of CADE's previous approval, the use of APROs
may gain importance again as an instrument to preserve the competition and the
effectiveness of the law.
The full content of CADE's Resolution nº 13/2015 is