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CADE and BACEN put an end to a 10-year problematic discussion

March 9, 2018

The Brazilian Antitrust Authority (CADE) has just signed a Memorandum of Understanding with the Central Bank of Brazil (BCB) to coordinate on the analysis of mergers and investigations involving companies in the financial industry and to line up actions to stimulate competition in regulated markets as well. As our team has previously reported, the MoU comes to put an end to an intricate judicial litigation carried by both the entities since 1990 on the competence definition to deal with competition issues. The main points established by the MoU can be summarized:

The goal. The expected outcome is to reach greater alignment between both institutions, providing the financial industry with more legal certainty and predictability in proceedings involving competition and antitrust matters.

Exchange of information. CADE and BCB will frequently exchange information on technical parameters to ensure the consistency in common interest proceedings.

Merger Review Proceedings. Both authorities will continue to independently review and approve merger review cases involving the financial sector for its clearance. However, BBC is allowed to unilaterally approve merger review cases when transactions bring risks to the stability of the country’s financial system. In such cases, CADE should follow BBC’s decision.

Anticompetive investigations. CADE will continue investigating anticompetitive conducts involving companies in the financial industry. However, CADE will have to make a consultation regarding the status of the financial markets regulated by BCB before issuing condemnation decisions. Following the exchange of information covenant, CADE will be able to make use of detailed data provided by BCB on the markets to boost the accuracy of its antitrust analysis.

Complementary Bill. CADE and BCB have also committed to review their rules as well as to approve a complementary bill establishing clear standards to their joint proceedings.

The MoU represents an important step forward by providing more legal certainty to companies of the financial industry that might have to deal with both institutions regarding competitive matters.