This article provides an overview of expectations as regards the Administrative Council for Economic Defence (CADE) in 2022. The year marks a new beginning of sorts for the antitrust regulator, with the yet-to-be-formalised appointment of a new general superintendent and the start of the term of the new president of its tribunal, Alexandre Cordeiro (who formally took office on 12 July 2021). Brazil is also expecting the nomination of two commissioners, who will be central in shaping the tribunal's new orientation, which might entail either an alignment with, or a distancing from, current case law. A general election will also take place in 2022; the next president and the composition of the Senate will both influence the CADE nominations.
In terms of enforcement, it is expected that the CADE will continue to face the most pressing issues in competition policy. Against increasing global scrutiny over issues regarding privacy, labour markets, environment and other less conventional antitrust debates, it is likely that similar claims will be presented to the CADE. Cordeiro has already expressed his own views on enforcement and has indicated his interest in not following the trends that have been observed in Europe and the United States; instead, he aims to pursue more traditional antitrust investigations. However, as mentioned, the direction that the CADE will take will depend on its new composition.
Regardless, important matters will be analysed over the next few months, such as the divestiture of Oi's mobile business to the three major companies in the market – namely:
- TIM; and
The merger filing depends on an agreement with several third parties that have opposed its clearance. There are also regulatory dimension and innovation concerns regarding 5G technology, all of which make it likely that clearance will be conditioned upon remedies.
Moreover, several investigations are expected to receive partial and final decisions in 2022. Some of these cases include:
- cryptocurrency – the CADE has been investigating banks that have allegedly created barriers that prevent the operations of cryptocurrency brokers;
- iFood – the Brazilian delivery platform has been investigated for exclusivity agreements established with bars and restaurants; and
- Google's scrapping practices – an investigation into content produced by Brazilian newspapers.
Further, developments are expected in market research of killer acquisitions (where the CADE has requested information about past acquisitions from 19 digital players in Brazil).
The CADE is equally expected to stay active in advocacy matters, notably with the publication of studies led by the Department of Economic Studies. In 2021, the department issued several such publications:
- Ex post mergers evaluation: Evidence from the Brazilian airline industry;
- The problematic binary approach to the concept of dominance;
- Update on the debate on relevant market definition; and
- a publication on the healthcare sector(7) (a market that promises to continue to be the focus on intense merger and acquisition activity, notably with the recent decision by UnitedHealth to sell its business in Brazil).
It remains to be seen how the CADE will approach these institutional and enforcement matters during 2022, but the year promises to be an intense one for competition in Brazil.
For further information on this topic please contact Marcela Mattiuzzo or Arthur Sadami at VMCA by telephone (+55 11 3939 0708) or email ([email protected] or [email protected]). The VMCA website can be accessed at http://www.vmca.adv.br.