News and Business
Brazil’s Antitrust Authority releases Trustee Manual and final version of V+ Guidelines
Brazil's Senate also approved the appointment of CADE's Attorney General while the authority's General Superintendent has taken office for a second term
Trustee Manual
In April 2024, the General Superintendence of Brazil’s Antitrust Authority (SG-CADE) released its Trustee Manual. This document seeks to improve processes for monitoring compliance with decisions, commitments, and agreements concerning the control of structures or investigations into anti-competitive behavior.
Trustees are independent third parties (accounting and auditing firms, independent consultants, law firms, among others) hired by parties subject to antitrust remedies (set by CADE via decisions or agreements) to assist the authority in monitoring decisions and implementing remedies. CADE often requires parties to hire trustees to approve merger cases subject to Merger Control Agreements (ACC). Of the 13 merger cases CADE’s Tribunal has approved with ACCs since 2022, 11 required the parties to hire trustees.
Trustees can monitor behavioral remedies and divestitures. Although trustees are not prohibited from performing more than one of these functions, the Trustee Manual recommends separate trustees perform each role (when more than one is necessary) to mitigate risks.
To ensure monitoring processes keep pace with a decision’s implementation, the Trustee Manual states that the deadlines for nominating and appointing trustees must be explicitly stipulated in the ACC. It recommends trustees be nominated within 30 days of CADE publishing its decision – except for divestiture trustees, in which case a longer period is recommended.
The manual also suggests that parties propose at least three trustee candidates for two of CADE’s bodies to review and approve – the General Superintendence, which approves or rejects candidates by way of a technical note, and then an Order from the Tribunal Chairman, which is subject to review and referendum at CADE’s Tribunal. The parties must then select the trustee from the approved candidates within ten days.
Once the trustee has been selected and hired, they must be provided with the necessary means and conditions to perform their duties. In return, trustees must provide CADE with truthful, timely information, highlight any difficulties encountered in evaluating compliance, and report any suspicions of non-compliance. However, CADE is ultimately responsible for assessing and ruling on any non-compliance.
The Trustee Manual represents another positive step in CADE’s efforts toward improving its procedural transparency and the standardization of monitoring processes.
V+ Guidelines
On April 17, 2024, CADE published its long-awaited Guide for Analyzing Non-Horizontal Mergers (V+ Guidelines). This document provides non-binding instructions to help companies understand CADE’s framework and criteria for evaluating competition aspects of non-horizontal transactions, providing greater legal certainty to the parties involved. More information about the V+ Guide is available here.
CADE Attorney General Awaits Presidential Nomination; General Superintendent takes office for second term
On April 2, 2024, Brazilian President Luiz Inácio Lula da Silva submitted his recommendation to the Senate for André Luis Macagnan Freire to be approved as Attorney General of CADE’s Specialized Federal Attorney General’s Office for a two-year term. With a law degree from the University of São Paulo and a degree in Economics from the University of Brasília, Freire has been a member of the Federal Attorney General’s Office since 2017 and works as a legal advisor to the Brazilian Ministry of Development, Industry, Trade and Services.
President Lula also submitted his recommendation for Alexandre Barreto de Souza to be reappointed as CADE’s General Superintendent for another two years. Barreto served as CADE’s General Superintendent from April 2022 until the end of his first term in April 2024, and previously served as Chairman of CADE’s Tribunal from 2017 to 2021.
Both recommendations were approved in the Senate’s Economic Affairs Committee hearing on May 14, 2024. Alexandre Barreto received 21 votes in favor, one against, and one abstention, while André Freire received 20 votes in favor, two against, and one abstention. The Senate confirmed the nominations on June 19, 2024. André Freire now awaits President Lula’s official nomination, while Alexandre Barreto took office for a second term on June 26.
For more information on these topics, please contact Mattos Filho’s Antitrust practice area.
