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CNPE establishes guidelines for divestitures in the refining sector

Oil and Gas

​The National Council For Energy Policy (Conselho Nacional de Política Energática – “CNPE”) published on 14 May 2019 the CNPE Resolution No. 9/2019 that establishes guidelines for the promotion of free competition in the refining activities in Brazil.  

The Resolution established the following guidelines that must be complied with in event of divestitures carried out by companies in dominant position in the refining sector, without prejudice to the legislation applicable to such companies:

(i) concomitant sale of refineries and respective infrastructure assets required for the handling of their inputs and products;

(ii) transfer of potentially competing refineries to different economic groups;

(iii) transfer of refining assets without maintaining the ownership interest of the seller in such assets; and

(iv) transfer of assets for handling of inputs and products, preferably to non-vertically integrated economic groups, considering the relevant market and pursuant to the Brazilian National Agency for Petroleum, Natural Gas and Biofuels Agency (Agência Nacional do Petróleo, Gás Natural e Biocombustíveis – "ANP") regulations on third-party access.

The Resolution provides that compliance with the guideline (i) above may be waived, if there is infrastructure sharing by more than one user.

Finally, the Resolution establishes that in the case of submission of operations for approval by the Brazilian Administrative Antitrust Council (Conselho Administrativo de Defesa Econõmica - "CADE"), pursuant to art. 88 of Law 12,529/2011, the ANP and the Energy Research Company (Empresa de Pesquisa Energética - "EPE"), within the scope of their duties, may submit technical opinions to support CADE's analysis on the divestitures.

The CNPE Resolution No. 9/2019 can be accessed here (non-official translation to English).

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