On October 16, 2018, The Administrative Council for Economic Defense ("CADE") released the final version of the Antitrust Remedies Guide. The document sets out the best practices and procedures usually adopted in the design, application and monitoring of remedies established by CADE, in order to increase the predictability and transparency through adoption of this new Guide.
Antitrust remedies are understood as restrictions necessary to correct the possible harmful effects of a Concentration Administrative Proceeding ("CA" or Concentration Act) in accordance with Article 61 of Law 12.529/2011. In this way, the remedies seek to prevent a CA from resulting in the elimination of competition in a substantial part of the relevant market, in the increased probability of coordination between competitors, in the creation or reinforcement of a dominant position or, which may result in the dominance of the relevant market of goods or services in accordance with Articles 36 and 88 of Law 12.529/2011.
In this regard, if an operation is not approved, the Administrative Court of CADE can determine the imposition of remedies that constitute a necessary condition for its approval. However, in the event of the impossibility of applying these remedies to an operation that potentially causes damage to competition, the CA must be rejected by CADE's Court, according to Article 88 of Law 12.529/2011.
These remedies can be negotiated through a Merger Control Agreement, as well as through unilateral designation by the CADE Court, or can be part of the Cease and Desist Agreements, in cases of infractions to the economic order arising from anticompetitive conduct, according to Articles 36 and 38 of Law 12.529/2011.
In conclusion, it should be pointed out that the Guide is not mandatory, so it cannot replace or change provisions of CADE’s Internal Statute. Consequently, its guidelines can be changed by the authority depending on the specificities of the case under analysis.