Brazil's Administrative Council for Economic Defense Enacts Two New Precedents

Originally published November 11, 2010

Keywords: Administrative Council for Economic Defense, CADE, antitrust, transaction date, filing term,

The Administrative Council for Economic Defense (CADE) enacted two new precedents—Precedents Nos. 8 and 91—in order to clarify CADE's case law.

The new precedents elucidate the rule that defines the date when a transaction is considered "performed" for antitrust purposes in those cases where the transaction agreement sets forth a condition precedent and/or a sale or purchase option. According to Law No. 8,884/1994 (the "Antitrust Law"), the transaction can be filed with the antitrust authorities until 15 business days after the execution of the first binding document. For that reason, it is important to know when the transaction was performed and, consequently, when the filing term starts to count.

Precedent No. 8 specifies that the term set forth by article 54, paragraph 4, of the Antitrust Law starts to run when the agreement is executed, not when the condition precedent is fulfilled.

Precedent No. 9 concerns agreements that set forth purchase or sale options. CADE established that the filing term begins to run from the exercise of the option (to purchase or to sale) and not from the execution of such agreement, except if this agreement has other provisions that can be solely defined as a transaction subject to antitrust review.

It is important to emphasize that the applicable penalty for untimely filing of a transaction, to be imposed to the parties, may vary from R$64,000 (approximately US$37,000) to R$6,400,000 (approximately...