BRAZIL LAW AND PRACTICE Contributed by: Alan Campos Elias Thomaz, Juliana Sene Ikeda, Ricardo Barretto Ferreira da Silva and Camila Sabino Del Sasso, Campos Thomaz Advogados
conduct enforcement within a single agency allows CADE to address both structural and behavioural risks to competition comprehensively. Even transactions falling below notification thresh - olds may be subject to ex post review if they generate anticompetitive effects, particularly in digital markets, where companies with modest turnover may hold sig - nificant user databases, algorithms or platforms that influence market structure. CADE has increased scru - tiny of acquisitions involving data-rich or innovation- driven firms to prevent so-called killer acquisitions. 6.2 Criteria for Antitrust/Competition Review CADE’s substantive merger review focuses on wheth - er a notified transaction may substantially lessen com - petition or create or strengthen a dominant position in any relevant market. The analysis begins with defining relevant product and geographic markets and pro - ceeds to assess market concentration, entry barriers, and potential unilateral or co-ordinated effects. In sectors characterised by rapid innovation and strong network effects, CADE pays close attention to data-driven mergers that combine large user bas - es, technological assets and proprietary algorithms. Such integrations can facilitate exclusionary conduct by raising rivals’ costs or restricting access to essen - tial datasets. Even where revenue thresholds are not met, CADE may evaluate whether the acquisition or alliance has the potential to foreclose competitors or reduce innovation incentives. Beyond merger control, CADE exercises broad over - sight of unilateral conduct and market practices, including abuse of dominance, market foreclosure and anticompetitive co-ordination. Dominance is pre - sumed when a company controls at least 20% of a relevant market, though the presumption is rebuttable. Practices such as predatory pricing, exclusivity con - tracts, tying and bundling, discriminatory conditions and unjustified refusals to deal are subject to investi - gation when they harm consumer welfare or impede efficient market access. The agency also monitors conduct that limits interoperability or leverages control of essential data to exclude competitors.
CADE’s economic analysis integrates both struc - tural indicators and behavioural evidence, including elasticity measures, diversion ratios, and market test feedback. Horizontal mergers are generally viewed as low risk when combined market shares remain below 20%, while vertical integrations above 30% warrant detailed scrutiny. The authority also examines con - glomerate and portfolio effects, particularly in markets where a company’s dominance in one area can influ - ence adjacent markets. Efficiencies that are merger-specific, verifiable and likely to be passed on to consumers may offset anticompetitive effects. Failing-firm arguments are accepted only when the distressed target would exit the market absent the transaction. In associative contracts, CADE assesses whether the co-operation leads to joint decision-making, co-ordination or infor - mation exchange that restricts independent rivalry; purely technical or short-term collaborations are typi - cally cleared swiftly. Cross-border transactions are common, and CADE co-operates with international counterparts under When CADE identifies potential competitive risks, it may condition its approval on the implementation of remedies or commitments negotiated with the parties through a merger control agreement ( acordo em con- trole de concentrações ACC). The agreement defines the obligations, timelines and compliance mecha - nisms. Structural remedies, such as divestitures of assets, production units or brands, are preferred when they can effectively preserve market rivalry. Behavioural remedies are applied when structural measures are impracticable or unnecessary and typically include obligations to maintain supply contracts, ensure interoperability, grant non-discriminatory access to technology or data, or refrain from exclusivity arrange - ments. In the digital economy, CADE has increasingly explored data-related commitments in its reviews, including measures aimed at enhancing transparency or preventing the undue combination of user data - bilateral and multilateral frameworks. 6.3 Remedies and Commitments
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