Cade acknowledges gun jumping in procedure terminated by agreement



In the trial session on 10/05/2022, the Administrative Council for Economic Defense (Cade) judged another administrative procedure to investigate a merger (APAC), pointing out the occurrence of gun jumping in the end, consistent with consummating the transaction without prior notification. The procedure, which dealt with two mergers involving companies from Grand Brasil Group, was concluded with an Agreement on Merger Control (ACC) and the payment of a pecuniary contribution of more than R$ 2.5 million.
The investigation, which was started by the General Superintendence of Cade (SG) in 2019, assessed the need for mandatory notification of the following transactions: (i) the transference of the Renault dealership and tangible assets by Grand Brasil to Bis Distribuição de Veículos Ltda. (“Bis”), whose agreement was entered into on 03/29/2016; and (ii) the acquisition of tangible and intangible assets from BMMOT Comércio de Veículos Ltda. (“BMMOT”) by a company also belonging to the Grand Brasil Group with a contract dated 12/19/2018. Concerning the latter, the need for notification was discarded, due to non-fulfillment of the revenue criteria of the economic groups involved.
Regarding the first transaction, there was a discussion about the statute of limitations for imposing a fine, considering a time lapse of more than 5 years between the date of the contract and the Court’s decision. CADE decided on the same lines as its jurisprudence and the Opinion of the Specialized Federal Prosecutor’s Office, considering gun jumping as a permanent, illicit wrongdoing that is projected while the acts resulting from the operation last. Thus, the possibility of a statute of limitations was excluded.
Whether the transferred assets would be essential or not was also evaluated for the development of the economic activity of the parties, which would be necessary for characterizing a merger under the terms of art. 90, II of Law 12,529/2011 (purchase or exchange of stocks, shares, bonds, or securities that could be converted into tangible or intangible stocks or assets). It concluded that the assets involved in the operation would be part of the set of assets used in the activity of selling new vehicles in various municipalities. Consequently, the merger would be characterized for notification purposes.
Finally, the decision emphasized the fact that the payment of the contribution does not exempt the companies from the duty of notifying about the merger, which is still mandatory for the effects of its consummation to become regular.
The vote of the Rapporteur Councilor Victor Oliveira Fernandes is available at this link.