M E M O R A N D U M. Re.: Overview on Brazilian Merger Control, pursuant to Law No /2011

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1 M E M O R A N D U M Re.: Overview on Brazilian Merger Control, pursuant to Law No /2011 Date: February 2012 This memorandum is merely an overview of certain complex legal provisions. A number of details, nuances and exceptions have deliberately been omitted for the sake of clarity and conciseness. This memorandum shall thus not be deemed a legal opinion that may serve as ground for the taking of specific measures. Instead, as a guideline for action, we suggest that in event the most remote doubt remains about the daily conduct of your business, you seek our counsel beforehand. On December 1 st, 2011, the Official Gazette published Law No. 12,529 (the New Antitrust Law ), which practically overruled Law 8,884/94 1, which will take effect on May 30 th, 2012, within 180 days from it official publication. Note that some of the rules will depend on further regulation by the competent authorities. Please find below an overview on Brazilian Merger Control, pursuant to the New Antitrust Law, which introduced the pre-merger antitrust notification: 1. Governmental Authorities. The Ministry of Justice, through the Administrative Council for Economic Defense (Conselho Administrativo de Defesa Econômica - CADE), is entrusted with enforcing local antitrust rules and regulations. CADE is now the sole entity in charge of the supervision and is also the decision making body in charge of reviewing and approving any transaction which, under applicable law, must be subject to antitrust clearance. CADE is composed of the following bodies: (i) The Administrative Court, an administrative body composed of a President and other six board members in charge of reviewing and approving transactions that, under applicable rules, are subject to antitrust clearance; 1 Law /11 revoked 91 of the total of 93 articles of Law No. 8,884/94, which refer to amendments to Article 312 of the Brazilian Criminal Procedure Code and Article 39 of Law No. 8,078/90.

2 (ii) (iii) The General Superintendence, which will analyze antitrust investigation and review proceedings. It may also approve certain transactions the effects of which are considered of minor relevance to the competition, as provided for under the applicable law; and The Economic Studies Department (Departamento de Estudos Econômicos), responsible for the issuance of economic studies to assist the General Superintendence and the Administrative Court. In addition to CADE, the Secretariat of Economic Monitoring (Secretaria de Acompanhamento Econômico - SEAE), linked to the Ministry of Finance, will be in charge of competition advocacy. 2. Concentration acts subject to review by the Brazilian Antitrust Authorities. Article 88 of the New Antitrust Law provides for a mandatory pre-merger notification system to CADE in the case of Mergers 2 where, cumulatively: (i) at least one of the groups involved in a transaction has reported, in its latest balance sheet, a gross annual revenue or total business volume in Brazil, in the preceding year to the transaction, equivalent or higher than R$ 400 million 3 ; and (ii) at least one of the groups involved in a transaction has reported, in its latest balance sheet, a gross annual revenue or total business volume in Brazil, in the year preceding the transaction, equivalent or higher than R$ 30 million 4. CADE also has discretionary powers to request the submittal of mergers that do not fall under the above criteria within 1 year as of its conclusion. Mergers falling under the thresholds provided in Article 88 shall not be concluded unless duly approved by CADE subject to being deemed null and void and to a penalty fine from 2 Mergers (or Concentration Acts as defined under the Law ) comprises: (i) the merger among two or more companies; (ii) the direct or indirect acquisition of the control or of parts of one or more companies, by means of acquisition or exchange of equity or any other security convertible into equity, or assets by any contractual or other means; (iii) the merger of one or more companies into another company or other companies; (iv) two or more companies starting an association, consortium or joint venture; except for the purposeof participating in direct or indirect public administration bids (Article 90 of the New Antitrust Law). 3 This amount may be adjusted as indicated by the CADE Full Court, by means of inter-ministerial ordinance issued by the Ministries of Finance and Justice. 4 This amount may be adjusted as indicated by the CADE Full Court, by means of inter-ministerial ordinance issued by the Ministries of Finance and Justice. 2

3 R$ 60 thousand to R$ 60 million, in addition to an administrative proceeding, as provided under the law. The same penalties shall apply in the event the involved parties failing to preserve the same competition standards existing prior to the antitrust filing. Mergers which may eliminate competition in a substantial part of a relevant market, and create or reinforce a dominant position, or which may result in relevant market domain of goods and services are prohibited. However, they may be approved provided that: (i) there is an increase in productivity or competition; an improvement in the quality standards of goods and services; or it allows for efficiency and technical or economic development; and (ii) substantial part of such benefits is transferred to the end users. 3. Timeframe for Review. In principle, the merger notification review should be concluded within a period of 240 days, from the date the notification or its amendment is filed. Such term may be extended for an additional nonrenewable 60-day period on request of the involved parties; or for an additional nonrenewable 90-day period, by means of a duly justified request made by the Administrative Court, containing the necessary steps for the final judgment. With the possible renewals, the total term for final approval would be of 330 days. The Government vetoed the automatic approval after the above deadlines, alleging damage to society, which created uncertainty as to the statutory period. To pacify this issue, CADE s General Attorney issued an opinion stating that if CADE does not issue its decision within the timeframe established by the Law, the Merger is deemed to be automatically approved by CADE and the parties may conclude the transaction. The General Attorney s opinion has been ratified unanimously by the Court of CADE. 4. Procedures. Article 53 of the New Antitrust Law provides that the involved parties must submit the Mergers containing information and data to CADE, by ordinance issued by the authorities. Should this petition not comply with the regulatory requirements or be incomplete, the General Superintendence shall request the parties to amend it only once. Once the filing of the Merger has been fully submitted, the General Superintendence will publish the name of the petitioners, the nature of the transaction and the involved sectors. The General Superintendence shall either (i) decide on the Merger, rendering a final decision whenever the procedure does not require new diligence, or if there is minor potential risk to the competition, as defined by CADE s resolution; or (ii) determine a complementary instruction, specifying measures to be taken. 3

4 Once all the procedures have been concluded, the General Superintendence may: (i) issue a final decision approving the Merger without restrictions, in which case any interested third party or any member of the Administrative Court may appeal to the Administrative Court; or (ii) contest the Merger before the Administrative Court, in case such third party or member of the Administrative Court deems that such Merger must be rejected, approved with restrictions, or if there is no conclusive element as to the effects on the market. After applicants have manifested on the objection of the General Superintendence, the member of the Administrative Court in charge of the report on the Merger may either issue its vote and submit it to the Administrative Court for judgment or request further instruction. At the judgment, the Administrative Court may approve, reject, or partially approve the Merger, determining restrictions to be observed by the petitioners for the validity of the Act. 5. Extraterritoriality. Article 2 of the New Antitrust Law sets out that, without prejudice to any agreements and treaties to which Brazil is a party, this Law applies to acts wholly or partially performed within the Brazilian territory, or the effects of which are or may be suffered therein. First Paragraph of said Article 2 further provides that foreign companies that operate or have a branch, agency, subsidiary, office, establishment, agent or representative in Brazil shall be deemed situated in the Brazilian territory. Second paragraph of the same rule states that the foreign company shall be notified and served regarding all proceeding acts, regardless of power of attorney or contractual or by-laws provisions, through the individual responsible for its branch, agency, main branch, establishment or office located in Brazil. By virtue of the above-mentioned provisions, any mergers or acquisition, associations (joint ventures) and joint constitutions of new companies effected by the group outside the Brazilian territory and that has some kind of effect in the Brazilian relevant market must also be submitted to the Brazilian antitrust authorities, should the thresholds defined in item 2 above be met. 6. Transition Period. Until the New Antitrust Law takes effect on May 30 th, 2012, Law 8,884/94 shall remain in force. According to Law 8,884/94, any act that may limit or otherwise restrain free competition or that results in the control of relevant markets for certain products or services, shall be submitted to CADE (the Concentration Acts ). In accordance with Paragraph 3 of Article 54 of Law 8,884/94, the acts to be submitted to CADE include any action intended for any form of economic concentration, whether through consolidation or merger, organization of 4

5 companies to control third companies or any other form of corporate grouping: (i) which results in a company or group of companies holding 20% market share in a relevant market; or (ii) in which any of the participants has posted in its latest balance sheet an annual gross revenue equivalent to R$ 400 million (the revenues of the group as a whole in the Brazilian territory have been considered). The criteria indicated above (revenue of R$ 400 million and control of 20% of the relevant market) are independently analyzed. In view of this, it takes only one of them to trigger the notification requirement. For the purpose of evaluating the revenue criterion, please note that Brazilian authorities take into account only the revenues generated in or derived from Brazil. In the specific case of a group, the notification is, in principle, mandatory whenever the revenue of the group as whole in Brazil is superior to the amount described in item (ii) above, regardless of the criteria of the relevant market (the 20% threshold). 7. Main Changes introduced by the New Antitrust Law The following chart summarizes the main changes introduced by the New Antitrust Law: Legal Provisions Law 8,884/94 Law 12,529/11 Term for notification of mergers Invoice test - First threshold Invoice test - Second threshold Relevant Market criteria 15 business days after the conclusion of the merger Any involved party (group) has an annual revenue exceeding R$ 400 million n/a Merger exceeding 20% of the relevant market Pre-Merger Notification One of the involved parties (group) has an annual revenue exceeding R$ 400 million The other involved party should have a revenue exceeding R$ 30 million n/a Possibility of CADE requesting a posteriori submission n/a 5 CADE may request the presentation of acts not provided for under the above mentioned thresholds, within a 1-year period after the

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