The Guide to Merger Remedies

Brazil

Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados

Introduction

The Brazilian antitrust authority (CADE) has been showing an increased sophistication and higher levels of scrutiny in the analysis of complex merger cases over recent years. For instance, between January 2017 and March 2018, four transactions were blocked and another 10, including both domestic and global deals, were only approved by CADE after the negotiation of considerable remedies packages.2

During this period, CADE has indicated that it will take a stricter approach to remedy negotiations, with a clear preference for structural remedies, at least when it comes to horizontal mergers. Moreover, the experience shows that CADE has introduced new tools in the negotiation of remedies and has been focusing strongly on both the nature of the remedies package and the feasibility of its implementation in the short term.

This approach creates important challenges for merging parties. As a consequence, it is even more important that the parties identify in advance the potential antitrust concerns and define the proper strategy for the Brazilian merger control review as soon as possible whenever a complex transaction is expected to give rise to competition concerns in Brazil.

This chapter provides an overview of recent trends regarding remedies in Brazil, and discusses practical aspects of the Brazilian merger control regime that are key for transactions that require remedies negotiations with CADE as a condition to receive its approval.

Remedies: main goals pursued by CADE

Remedies are tools to address concerns raised by the antitrust authority during the review of complex mergers. The main statute applicable to the negotiations of remedies in Brazil is Law No. 12,529/2011 (the Brazilian Antitrust Law), according to which remedies are restrictions that are necessary to mitigate any adverse effects of a given concentration in a certain relevant market.3

It is a common practice among competition authorities around the globe, such as the European Commission (EC), the Federal Trade Commission (FTC) and the United States Department of Justice (DOJ), as well as international bodies such as the International Competition Network (ICN) and the Organisation for Economic Co-operation and Development (OECD), to issue guidelines that establish the main goals and principles that should be observed when negotiating remedies.4 Although CADE’s remedies guidelines are still under public consultation,5 both the preliminary draft guidelines released by CADE and the authority’s recent practice show that the Brazilian authorities tend to follow some goals and principles when it comes to remedies negotiations. Such goals and principles can be summarised as follows:

• Proportionality – according to CADE’s draft guidelines, proportionality is one of the principles that shall be taken into account in order to guarantee the effectiveness of the remedy. This is in line with the ICN’s guidelines, according to which the remedy should be proportional to the issues raised by the transaction (i.e., they should be tailored and specifically address the antitrust concern related to that merger).6

• Timeliness – this principle is also set out on both CADE’s draft guidelines and the ICN’s guidelines. According to these documents, the remedy should address the concern in a timely manner.

• Feasibility – this is another principle that is commonly highlighted by remedy guidelines around the globe. The remedy should be feasible, meaning that it should be subject to easy implementation by the parties and easy monitoring by the authorities.

CADE’s experience

CADE’s history

As demonstrated by the table below, the majority of merger cases reviewed by CADE are approved without remedies.

2013*

2014

2015

2016

2017

2018

Approved with remedies

2

8

7

6

5

5

Total merger cases analysed by CADE

442

403

305

390

378

126

* Source: prepared by the authors based on data available on CADE’s website (www.cade.gov.br).

The table above focuses on cases with remedies negotiated with or applied by CADE after analysing the merits of the merger. Cases with mere alterations in the non-compete clause of the transaction agreement are not contemplated.

The main reason for the apparently small number of mergers approved with remedies is that complex cases account for a very small percentage of the mergers reviewed by CADE – most of which constitute simple transactions subject to the so-called fast-track proceeding and are cleared with no remedies in a very expeditious manner.

The complex cases, however, have been facing a more rigorous approach by CADE.The Brazilian antitrust review commonly involves substantial and lengthy market tests with customers, competitors and suppliers of the parties, specific economic analysis carried out by CADE’s Economic Department, and, in cases of cross-border transactions, close coordination and communication with foreign antitrust authorities, in particular those from Europe and the United States.7

As mentioned above, this approach has led to the negotiation of increasingly sophisticated remedies packages, especially between January 2017 and March 2018.8 Some of these cases9 are summarised below:

• Bayer/Monsanto – a global merger between two of the major players in the chemical sector with considerable overlaps in the crop protection segment. The merger was approved subject to severe remedies that included structural remedies with the objective to completely eliminate certain horizontal overlaps (i.e., the sale of all of Bayer’s tangible and intangible assets regarding the soybean seeds and cotton businesses, as well as the unit of non-selective herbicides based on ammonium glufosinate to an upfront buyer) and strong behavioural remedies towards the commercial policies of the companies, which aimed at avoiding exclusionary or discriminatory behaviours.10

• Arcelormittal/Votorantim – domestic deal regarding the acquisition of local long steel producer Votorantim Siderurgia by ArcelorMittal’s Brazilian subsidiary. The merger was approved subject to two packages of structural remedies combined with behavioural remedies (including a performance commitment). The first package related to the drawn and ordinary long rolled steel business and the second related to wire drawing and steel wire rod machines. The packages could not have the same potential buyer, and a buyer could not already have a share of above 20 per cent of the relevant markets.11

• Dow/DuPont: the cross-border deal between Dow and DuPont was subject to a comprehensive package of structural remedies, including the divestment of Dow’s acid copolymer and ionomers global business, divestment of certain assets of Dupont’s global herbicides and insecticides business, including intellectual property rights, customer records and agreements with third parties. Remedies also included the divestment of Dow’s corn seed business in Brazil (including the germplasm bank, part of the hybrids in Pipeline, R&D centres and commercial hybrids of Dow in Brazil). The assets included production facilities, brands, staff, and sales and work force. Finally, the remedies also determined the profiles and characteristics of the potential buyers.12

Type of remedies adopted by CADE

The remedies adopted by CADE are usually either structural or behavioural in nature, although CADE has requested a combination of the two in several cases.

According to the Brazilian Antitrust Law,13 structural remedies may include: (1) the sale of a set of assets that constitute a business activity; (2) a spin-off of a company; (3) the sale of corporate control or of equity interests; or (4) the transfer of intellectual property rights, including, among others, patents and trademarks.

On their turn, behavioural remedies may include:

• obligations of transparency when negotiating supply or distribution agreements with third parties;

• the obligation of maintaining non-discriminatory or competitively appropriate behaviour with third parties in supply or distribution agreements;

• suspension, elimination or obligation not to adopt de facto or de jure exclusivity clauses in commercial relations with related or unrelated parties;

• the obligation to supply or to provide access to key assets, inputs or infrastructure for competitors;

• the obligation to file transactions with CADE, even when they do not meet the legal thresholds;

• suspension of political or corporate rights arising from equity shares;

• prohibition to access, share or transmit competitively sensitive information between the applicants’ related parties; and

• mandatory licensing of intellectual property rights, including trademarks.

Like most competition authorities around the globe,14 CADE has indicated, in different opportunities,15 that structural remedies (and in many cases a combination of structural and behavioural remedies) are preferred over purely behavioural remedies. The reason is that structural remedies aim to re-establish the competitive dynamics of the relevant markets without the need for future monitoring16 – which can be costly and time-consuming. This attention to the feasibility of the remedy has made CADE in recent cases indicate that, whenever possible, parties should present the remedy with an upfront buyer. According to Councillor Cristiane Alkmin, structural remedies with upfront buyers should be CADE’s default, and other remedies should be explored only when this scenario is not possible.17

That said, CADE’s recent experience shows that the Brazilian antitrust authority appreciates that behavioural remedies may be adequate to address the competition concerns arising from a given transaction without the need for more intrusive requests, especially in the context of vertical mergers where behavioural commitments may be appropriate to preserve the efficiencies that are expected to be generated by the notified transaction. This approach, when applicable, is in line with the proportionality principle that should be taken into account by the authorities when negotiating remedies.

For instance, despite the clear preference that the Brazilian antitrust authority shows for structural remedies, statistics demonstrate that, in many cases, behavioural remedies have been shown to be sufficient and acceptable by CADE. The table below outlines the percentage of behavioural and structural remedies applied by CADE over the past six years.18

2013

2014

2015

2016

2017

2018*

Behavioural and structural

0%

35%

42%

0%

0%

40%

Structural

100%

20%

25%

18%

20%

0%

Behavioural

0%

45%

33%

82%

80%

60%

* Statistics available until March 2018.

These statistics show that purely behavioural remedies prevailed in both 2016 and 2017, and continue to lead in 2018. However, these statistics must be read with care and put into the right context: in all such cases, there were specificities of either the notified transaction or the markets concerned (or both) that allowed CADE to be open to accept purely behavioural remedies in such specific cases, despite its preference for structural solutions. We present below a short overview of some recent cases in which behavioural remedies alone were sufficient to address the concerns raised by CADE during the review:

• Estácio/TCA – this was a merger in the Brazilian education market. CADE identified potential anticompetitive effects in the distance learning market in nine Brazilian cities and 20 different graduate courses. To address such concerns, the parties undertook the commitment to limit the students’ enrolment in the affected locations during four academic semesters, thus creating more opportunities and allowing the entry and growth of other competitors.19

• ALL/Rumo – this was a merger in the logistics services market in Brazil, which entailed vertical links involving railroad transportation. CADE considered that the merger had the potential to foreclose the market and favour tie-in sales. CADE and the parties negotiated a series of commitments that involved all the services that the resulting company would provide, including rail transport, transshipment, storage and ship loading. Among others, the new company must guarantee that its competitors will have access to its infrastructure. To avoid discrimination, the parties must also follow objective parameters for pricing the services provided to competitors, which can be taken to private arbitration in the event of conflicting positions between the merged entity and the entity interested in acquiring the service.20

• Bradesco/HSBC – this transaction involved the acquisition of HSBC by Bradesco, both private banks active in Brazil. The merger was approved with a series of 19 behavioural commitments, which included a commitment by Bradesco to refrain from making any rival acquisitions for at least 30 months, as well as the adoption of a compliance programme and the agreement with certain quality on the services provided to consumers.21

• Joint venture between Bradesco/Banco do Brasil/Itaú Unibanco/Santander/CEF – this transaction involved the creation of a credit bureau that would collect information on consumers’ financial history for use by credit providers. The merger was approved with a series of behavioural commitments, which included non-discrimination provisions requiring the parties (banks) to continue to provide information to rival credit bureaus and refrain from exchanging strategic information between competing banks, coordinating their activities and engaging in ad campaigns for their services that would benefit only the parties’ businesses.22

• Latam/Iberia/British Airways alliance – this transaction involved a joint business agreement between the airlines to operate flights between Europe and Brazil, regardless of the flight operator. The airlines agreed in behavioural commitments that would guarantee competition on the route between São Paulo and London, making slots available at Heathrow Airport free of charge to rivals for 10 years.23

• BMF&Bovespa/Cetip – this transaction involved the acquisition of clearinghouse Cetip by the stock exchange operator BMF&Bovespa. The parties agreed on behavioural commitments to guarantee the access to third parties to their infrastructure on fair, transparent and non-discriminatory terms.24

• Itaú Unibanco/Citibank – this transaction involved the acquisition of Citibank’s retail operation in Brazil by Itaú Unibanco. The merger was approved conditional to a settlement agreement by which Itaú Unibanco agreed on commitments to make it easier for clients to access information, improve the quality of its services and staff through training, improve customer satisfaction and set up certain compliance measures. Itaú Unibanco also undertook the commitment of not acquiring players in the banking sector for 30 months.25

• AT&T/Time Warner – this transaction involved AT&T’s proposed acquisition of Time Warner. The parties agreed on behavioural commitments to preserve competition in the markets of television programming and pay-TV operations. Among the behavioural commitments undertook by AT&T is the maintenance of Sky Brasil and Time Warner’s programming channels as independent businesses with their own governance and management structures. Sky Brasil and Time Warner must refrain from exchanging competitively sensitive information or any information that could be used to discriminate against players that are not part of their economic groups. AT&T also undertook the commitment to offer Time Warner’s programming channels to non-affiliated packers and providers of pay-TV with all the programming channels licensed to Sky in non-discriminatory conditions.26

• Petrotemex/Petrobras – this transaction involved Petrotemex’s acquisition of Petrobras’ PET resin maker and PTA supplier. The deal was challenged by M&G, the only other rival in Brazil for the PET resin market. M&G claimed the merged entity would have incentives to discriminate the rival in the sales of PTA (a material used in the production of PET). Petrotemex agreed in a behavioural commitment to guarantee supply of PTA to M&G in conditions that would guarantee M&G supply and prevent price discrimination against M&G.27

Practical guide on remedies negotiation with CADE

According to the Brazilian Antitrust Law, remedies may be either imposed by CADE or negotiated with the parties to the transaction (in this case, the parties and CADE will enter into a merger control agreement (known as an acordo em controle de concentrações (ACC)). Remedies are often negotiated rather than imposed.28

CADE has been adopting an increasingly sophisticated approach towards remedies. With that, parties have been required to carefully assess their strategies, including the most appropriate stage or time to approach the authority with a remedy proposal, taking into consideration several variables such as timing constraints, the types of remedies that are appropriate to address the concerns expressed by the authority, and with whom to start the negotiation (as further explained below). This section aims to address the most common questions regarding such strategies.

Although no formal procedures have been issued yet, draft remedies guidelines with best practices and clarifications on proceedings are currently under public consultation and are expected to be published in the second semester of 2018.29

When and with whom should remedies be negotiated?

Following formal submission of the filing, the merger review process in Brazil begins at the level of CADE’s General Superintendence (GS). The GS is the body responsible for the initial review of merger cases. Complex cases are subject to what is known as the ordinary proceeding, under which the parties must file a comprehensive form with a substantial amount of market information. In cases that are subject to the ordinary procedure, parties usually engage in pre-filing discussions with the GS before the formal filing. The GS will also be responsible for the market test.

The GS can unconditionally clear the transaction. On the other hand, whenever the GS concludes that a given merger should be either blocked or subject to remedies, the GS must refer the case to CADE’s Tribunal by means of a non-binding opinion putting forward the reasons why it reached this conclusion.30 When the case is sent to CADE’s Tribunal, it will be assigned to one of its Commissioners, who will be responsible for reviewing and presenting the case before the other Commissioners.31 At the end, CADE’s Tribunal can either unconditionally clear the transaction, block the transaction or approve it subject to remedies.

CADE’s internal rules32 set forth that ACC proposals may be presented any time between the submission of the filing up to 30 days after the GS has issued an opinion challenging the case and sending it to CADE’s Tribunal.33 Therefore, remedies can either be negotiated with the GS or with CADE’s Tribunal.

The agreement negotiated with the GS must also be approved by CADE’s Tribunal, which may reject it if it concludes that it is inadequate. In practice, however, statistics show that a package carefully negotiated with the GS is usually accepted by CADE’s Tribunal, although additional commitments may be required. CADE’s best practice shows that, in many cases, CADE’s Tribunal is already aware of the remedies being negotiated by the GS.

In practice, the parties should analyse the best approach to be adopted in each specific case. In cases where the parties are aware that remedies will be necessary to address the antitrust concerns and more straightforward remedies are available, the parties may want to consider beginning the negotiations with the GS. There are several benefits of initiating this process as early as possible: (1) it shows good faith and transparency by the parties; (2) it allows more time to negotiate the remedies; and (3) it expedites CADE’s review process. On the other hand, there are cases in which it will not be possible or desirable to negotiate the remedies with the GS. These are cases in which the remedies are less clear-cut, cases in which it is difficult to reach an agreement with the GS, and cases when the parties believe that there are good grounds and the likelihood that the case will be cleared without any remedies. In such cases, the parties may decide not to engage in any negation with the GS and only start negotiating with CADE’s Tribunal (if necessary), knowing, however, that this may cause delays in the total review period.

What is the approach when there is a multi-jurisdictional merger subject to remedies?

In global transactions that may give rise to potential competition concerns in Brazil, it is very likely that CADE will coordinate its review with other antitrust authorities worldwide (especially the FTC and DOJ, and the EC). For this purpose, CADE will typically ask the parties for a waiver that allows the case team to contact the antitrust authorities in other jurisdictions. In such cases, CADE will take into consideration the discussions being held by the other antitrust authorities and often tries to create in Brazil a package of remedies that is compatible with those being applied abroad.34

In fact, this has been the approach taken by CADE since the Brazilian Antitrust Law entered into force. In the first two cross-border transactions submitted in Brazil that required remedies (Syniverse/MACH 35 and Munksjö/Ahlstrom36), CADE exchanged information with the EC and negotiated a package of remedies that was similar to the one being applied in Europe. CADE has increased its coordination with foreign antitrust authorities ever since (e.g., Section 11 with regard to negotiating similar packages of remedies). This coordination has been further enhanced by cooperation agreements that CADE entered with a number of antitrust authorities around the globe, including in Mexico, South Africa and India.37

Despite this trend, CADE does not always follow the package of remedies being adopted in other jurisdictions. CADE conducts its own individual review and, whenever applicable, outlines the antitrust issues that are Brazil-specific. Conversely, there are a number of cases in which the remedies negotiated in Brazil were different from the ones applied abroad. This is the case of the Ball/Rexam38 merger, which was subject to Brazil-specific restrictions – including the divestment of plants located in Brazil and the transfer of local client contracts. Similarly, in the Continental/Veyance,39 Dow/DuPont 40 and Holcim/Lafarge41 cases, Brazil-specific remedies were applied in addition to the coordinated remedy packages that had been negotiated abroad.

What are the main challenges imposed by the negotiation of each type of remedy?

The first challenge faced by the parties is to convince CADE that the remedy will be sufficient to address the antitrust concerns. CADE is often reluctant to accept purely behavioural remedies as, among others, they can be difficult to monitor.42 Therefore, hiring a monitoring trustee on the parties’ expense has recently become part of the behavioural remedy, just as it is common practice when it comes to structural remedies.43

However, structural remedies, albeit preferred by CADE, also impose challenges. The first difficulty that is faced by the parties is to come up with the least burdensome remedy that is still capable of mitigating the antitrust concern raised by the merger. As can be seen with regard to the current remedies guidelines under public consultation, CADE will focus on measures that could maintain or create rivalry in the affected market, meaning that any disinvestment package has to be sufficient for a current or new player to carry out the activity relevant for that transaction and effectively compete in the affected markets (the draft guidelines call this package a ‘viable and autonomous business’). The package will likely involve tangible and intangible assets, and may include contracts with customers or suppliers, key employees, research and development assets, registers, and brands.44

Moreover, CADE has been signalling that the parties should present an upfront buyer45 to ensure that the remedy will address such concerns in a timely manner. In many recent cases, CADE has imposed requirements on the profile and characteristics of such potential buyer, which may pose an additional difficulty.46

Conclusions

As seen above, there are many variables connected to the negotiation of remedies in Brazil, meaning that the parties should carefully assess the best strategy to be adopted in each case, taking into account the individual antitrust concerns of each transaction, timing restraints and the remedy package being negotiated abroad (in case of cross-border mergers), among others.

The parties must also have in mind that CADE’s review has become increasingly sophisticated, with the addition of economic tools to the analysis of the remedy packages, meaning that the parties should carefully demonstrate that the proposed remedy is sufficient to address the antitrust concerns raised by the merger under analysis effectively and in a timely manner.

That being said, experience shows that, in general, CADE is prepared to move quickly and engage in constructive dialogue towards a negotiated outcome. The Brazilian antitrust authority tends to appreciate proactive and transparent approaches, and will usually entertain discussions related to more than purely structural remedies, where the parties can show that less intrusive solutions may be an option.

1 Marcio Soares and Renata Zuccolo are partners, and Paula Camara is a senior associate, at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados.

2 Cases approved with remedies from January 2017 to March 2018: Merger Case No. 08700.004860/2016-11 (Applicants: BM&FBOVESPA SA – Bolsa de Valores, Mercados e Futuros and CETIP SA– Mercados Organizados), Merger Case No. 08700.004211/2016-10 (Applicants: TAM Linhas Aéreas SA, Iberia Líneas Aéreas de Espana, SA Operadora, Sociedad UnipersonaI and British Airways Pico), Merger Case No. 08700.001642/2017-05 (Applicants: Itaú Unibanco SA and Banco Citibank SA), Merger Case No. 08700.001097/2017-49 (Applicants: Bayer Aktiengesellschaft and Monsanto Company); Merger Case No. 08700.004163/2017-32 (Applicants: Grupo Petrotemex SA de CV and Petróleo Brasileiro SA); Merger Case No. 08700.002165/2017-97 (Applicants: Arcelormittal Brasil SA and Votorantim SA); Merger Case No. 08700.001390/2017-14 (Applicants: AT&T Inc and Time Warner Inc); Merger Case No. 08700.005937/2016-61 (Applicants: The Dow Chemical Company and E.I Du Pont de Nemours and Company); Merger Case No. 08700.004431/2017-16 (Applicants: Itaú Unibanco SA and XP Investimentos SA); Merger Case No. 08700.007483/2016-81 (Applicants: WEG Equipamentos Elétricos SA and TMG Indústria e Comércio de Turbinas e Transmissões Ltda), and Merger Case No. 08700.001642/2017-05 (Applicants Itaú Unibanco SA and Banco Citibank SA). Cases blocked from January 2017 to March 2018: Merger Case No. 08700.006185/2016-56 (Applicants Kroton Educational SA and Estácio Participações SA); Merger Case No. 08700.006444/2016-49 (Applicants: Ipiranga Produtos de Petróleo SA and Alesat Combustíveis SA); Merger Case No. 08700.007553/2016-83 (Applicants: JBJ Agropecuária Ltda and Mataboi Alimentos Ltda) and Merger Case No. 08700.002155/2017-51 (Applicants: Companhia Ultragaz SA and Liquigás Distribuidora SA).

3 Please refer to article 61, paragraph 1.

4 See, for instance, the Commission Notice on remedies available at: http://ec.europa.eu/competition/mergers/legislation/files_remedies/remedies_notice_en.pdf.

5 CADE’s remedies guidelines were made available for public consultation on 23 May 2018. The guidelines are expected to be issued in the second semester of 2018. Although the draft guidelines are still under public consultation, we take into consideration the main concepts therein.

6 Available at www.internationalcompetitionnetwork.org/uploads/library/doc1082.pdf.

7 The EC in Europe, and the FTC and the DOJ in the United States.

8 See footnote 2 supra.

9 See A C Ribeiro and F B P Martins (April 2018). Antitrust remedies in Brazil: Legal framework and trends. Paper presented at the 66th ABA Section of Antitrust Law Spring Meeting, Washington, DC and R Zuccolo and F B P Martins (2018, April). How is CADE approaching remedies in Horizontal Mergers? Available at www.ibrac.org.br/UPLOADS/Livros/arquivos/Merger_control_in_Brazil_-_Frequently_asked_questions.pdf.

10 Merger Case No. 08700.001097/2017-49 (Applicants: Bayer Aktiengesellschaft and Monsanto Company).

11 Merger Case No. 08700.002165/2017-97 (Applicants: Arcelormittal Brasil SA and Votorantim SA).

12 Merger Case No. 08700.005937/2016-61 (Applicants: The Dow Chemical Company and E I Du Pont de Nemours and Company).

13 Please refer to article 61, paragraph 2.

14 According to the Commission Notice on remedies, ‘the basic aim of commitments is to ensure competitive market structures. Accordingly, commitments which are structural in nature, such as the commitment to sell a business unit, are, as a rule, preferable from the point of view of the Merger Regulation’s objective, inasmuch as such commitments prevent, durably, the competition concerns which would be raised by the merger as notified, and do not, moreover, require medium or long-term monitoring measures.’ Available at: http://ec.europa.eu/competition/mergers/legislation/files_remedies/remedies_notice_en.pdf.

15 See, for instance, Councilor Polyanna Vilanova speech at ‘Antitrust Remedies: Historical perspective and Trends’, IBRAC, Brasilia, Brazil, 29 March 2018.

16 See CADE’s Horizontal Merger Guidelines, available at: www.cade.gov.br/acesso-a-informacao/publicacoes-institucionais/guias_do_Cade/guia-para-analise-de-atos-de-concentracao-horizontal.pdf.

17 See Councilor Cristiane Alkmin’s speech and ‘Women in Antitrust’, IBRAC, Brasilia, Brazil, 10 May 2018. Please refer to www.ibrac.org.br/UPLOADS/Eventos/392/MLex_Content_988087-merger.pdf.

18 Source: Merger Control in Brazil: Frequently Asked Questions – IBRAC.

19 Merger Case No. 08700.009198/2013-34 (Applicants: Estácio Participações SA and TCA Investimento em Participações Ltda).

20 Merger Case No. 08700.005719/2014-65 (Applicants: América Latina Logística SA and Rumo Logística Operadora Multimodal SA).

21 Merger Case No. 08700.010790/2015-41 (Applicants: Banco Bradesco SA, HSBC Bank Brasil SA Banco Múltiplo e HSBC Serviços e Participações Ltda).

22 Merger Case No. 08700.002792/2016-47 (Applicants: Banco Bradesco SA, Banco do Brasil SA, Banco Santander (Brasil) SA, Caixa Econômica Federal and Itaú Unibanco SA).

23 Merger Case No. 08700.004211/2016-10 (TAM Linhas Aéreas SA, Iberia Líneas Aéreas de Espana SA Operadora, Sociedad Unipersonal and British Airways Pico).

24 Merger Case No. 08700.004860/2016-11 (Applicants: BM&FBOVESPA SA – Bolsa de Valores, Mercados e Futuros and CETIP SA – Mercados Organizados).

25 Merger Case No. 08700.001642/2017-05 (Applicants: Itaú Unibanco SA and Banco Citibank SA).

26 Merger Case No. 08700.001390/2017-14 (Applicants: AT&T Inc and Time Warner Inc).

27 Merger Case No. 08700.004163/2017-32 (Applicants: Grupo Petrotemex SA de CV and Petróleo Brasileiro SA).

28 In fact, over the past five years, there were no remedies being unilaterally imposed by CADE, although some cases may have received a divergent vote in this sense. These votes were not followed by the majority of Commissioners. See, for instance, Merger Case No. 08700.004860/2016-11 (Applicants: BM&FBOVESPA SA – Bolsa de Valores, Mercados e Futuros and CETIP SA – Mercados Organizados).

29 See footnote 5 supra.

30 According to the Brazilian antitrust law, CADE has up to 240 days (which can be extended by up to 90 days) to issue its final decision on a merger case. In practice, the review period is usually split equally between GS and CADE’s Tribunal.

31 CADE’s Tribunal is composed by seven commissioners (one of whom acts as chair) and is responsible for issuing final decisions on merger review cases. Decisions are taken by majority of votes.

32 CADE’s Internal Rules, dated 12 March 2018.

33 Article 165 of CADE’s Internal Rules.

34 This cooperation is also mention on pages 55 of the draft remedies guidelines under public consultation.

35 See Merger Case No. 08700.006437/2012-13 (Applicants: WP Roaming III S.à.r.l and Syniverse Holdings Inc).

36 See Merger Case No. 08700.009882/2012-35 (Applicants: Munksjö AB and Ahlstrom Corporation).

37 Please refer to www.cade.gov.br/assuntos/internacional/cooperacao-bilateral-1 or www.cade.gov.br/assuntos/internacional/cooperacao-multilateral-1.

38 See Merger Case No. 08700.006567/2015-07 (Applicants: Ball Corporation and Rexam PLC).

39 See Merger Case No. 08700.004185/2014-50 (Applicants: Continental Aktiengesellschaft and Veyance Technologies Inc).

40 Merger Case No. 08700.005937/2016-61 (Applicants: The Dow Chemical Company and E I Du Pont de Nemours and Company).

41 See Merger Case No. 08700.007621/2014-42 (Applicants: Lafarge SA and Holcim Ltd).

42 This preference was expressly stated in the draft remedies guidelines under public consultation (pages 15 and following of the draft). On pages 40 and following of the draft, the documents states situations on which CADE may accept purely behavioural remedies, with a special focus on vertical mergers.

43 See page 43 and following of the draft remedies guidelines under public consultation.

44 See page 19 and following of the draft remedies guidelines under public consultation.

45 See, for instance, Bayer/Monsanto (Merger Case No. 08700.001097/2017-49, Applicants: Bayer Aktiengesellschaft and Monsanto Company). This was also was expressly stated in the draft remedies guidelines under public consultation (page 17 of the draft).

46 See, for instance Dow/DuPont (Merger Case No. 08700.005937/2016-61 (Applicants: The Dow Chemical Company and E I Du Pont de Nemours and Company). This was also was mentioned in the draft remedies guidelines under public consultation (pages 34 and following of the draft), which focus on characteristics such as the market share already held by such buyer in the affected market, independence in relation to the parties, financial capacity and incentives to keep and development the disinvested business and sometimes even expertise on the affected markets.

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