Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Pursuant to Article 90, a concentration arises where: i) two or more previously independent undertakings merge; ii) one or more undertakings acquire, directly or indirectly, part or full control of one or other undertakings; iii) one or more undertakings incorporate one or more undertakings; iv) two or more undertakings enter into an association agreement, a consortium agreement or create a joint  …

Concept of concentration

Merger control is set forth in article 53-66 (proceedings) and 88-91 (concept of concentration) of Act No 12.529/2011. The 2011 Act brings major amendments to Brazilian merger control, putting it further in line with US and EU standards, by introducing a compulsory pre-notification of transactions while increasing control thresholds.

CADE's Resolutions No 1 and No 2 of 29 May 2012 supplement Brazilian merger control legislation on procedure related issues and notification forms, while Resolutions No 13 of 23 June 2015 and 24 of 8 July 2019 deal with gun jumping and Resolution No 17 of 18 October 2016 relates to the notification of associative agreements. The CADE also released Guidelines on horizontal megers and on remedies.

Mergers may also be subject to the approval of sectoral regulatory bodies such as the Central Bank of Brazil, the Brazilian Electricity Regylatory Agency or the National Telecommunications Agency. 

Context

Pursuant to Article 90, a concentration arises where: i) two or more previously independent undertakings merge; ii) one or more undertakings acquire, directly or indirectly, part or full control of one or other undertakings; iii) one or more undertakings incorporate one or more undertakings; iv) two or more undertakings enter into an association agreement, a consortium agreement or create a joint venture. 

The notion of “control” refers to the capacity of one or many joint undertakings to exercise, in law or in fact, an influence on the decision-making process related to commercially sensitive issues within the undertaking. 

Under Article 10 of CADE's Resolution No 2, a concentration also arises in the case of share acquisitions even where control is not acquired, where the buyer: i) becomes the largest individual shareholder, or; ii) acquires 20% or more of the capital of an undertaking which neither is a competing undertaking nor operates in a vertically related market, or; iii) acquires 5% of a competing undertaking's capital or of the capital of an undertaking operating in a vertically related market.

In 2025 CADE published a non-binding Guide for Horizontal Merger Review. CADE emphasizes that the analysis under Article 90 is not limited to formal legal categories but is guided by the economic substance of the transaction. The essential criterion is whether the transaction results in a durable change in the structure of the market, thereby potentially affecting competitive dynamics. Consequently, both full acquisitions and acquisitions conferring minority shareholdings or contractual influence may fall within the scope of Article 90 if they result in a shift in competitive incentives or capabilities.

Moreover, the Guide clarifies that the applicability of Article 90 is independent of the notification thresholds established under Article 88. That is, a transaction may qualify as a concentration under Article 90 but only become subject to mandatory pre-merger notification if the turnover thresholds set forth in Article 88 are also met.

Ultimately, Article 90 serves as the jurisdictional basis for CADE’s merger control regime. The Guide for Horizontal Merger Review interprets this provision expansively, reflecting a commitment to substantive effects-based analysis over formalistic classification. This approach aligns Brazil’s framework with international best practices in merger control, notably those of the European Union and the United States.

The 1994 Act set both turnover and market share thresholds. The 2011 Act abandoned the latter. Article 88, amended by Interministerial Ordinance No 994 of 30 May 2012, provides that transactions must be submitted to the CADE's approval where, cumulatively: i) at least one of the parties has achieved in Brazil a gross annual turnover equal of higher than R$750 million (US$ 143.9 million) in the previous fiscal year; ii) at least one of the other parties has achieved in Brazil a gross annual turnover equal of higher than R$75 million (US$ 14.3 million) in the previous fiscal year. 

The gross turnover takes into account all the companies belonging to an economic grouping viewed as entities subject to common control directly or indirecty through at least 20% of the shares or voting capital. 

Thresholds

Pursuant to Article 88, paragraph 5, a concentration must be prohibited where it results in the elimination of competition in a substantial part of the relevant market, where it may create or reinforce a dominant position or where it may result in the domination of a market of goods or services. However, under paragraph 6, such concentrations may nonetheless be authorized where, cumulatively or alternatively, they contribute to an increase in productivity or competitiveness, improve the quality of goods or services, or foster efficiency and technological and economic development. In addition, part of the resulting benefits must be passed to consumers. In July 2016, the CADE published its Guidelines for the analysis of horizontal mergers (Guia H), which aim at giving the CADE's analysis greater transparency, encourage its members to use the best practices in the field of economic analysis and help economic agents to understand the different stages of merger control and the criteria implemented by the CADE. 

Global Competition Law

840. Concept of concentration

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Les notions juridiques connexes

840. Concept of concentration

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise