In a recent decision, CADE condemned a company for an untimely merger filing. Despite the General-Superintendence’s recommendation to approve the merger without restrictions, the proceeding was submitted to the Tribunal due to noncompliance with the filing term. The applicants alleged that the fine for the untimely filing of the transaction would be unacceptable because it was not provided for in the current law, applying the hypothesis of retroaction of the “most beneficial” law. Moreover, the merger would not even be notifiable according to the new law. CADE’s Tribunal said the applicable law was the law in force at the time of the events; the hypothesis of applying the “most beneficial law” is unacceptable due to a lack of symmetry between the material content of the law and the penalties provided. The inapplicability resulted from the laws being systematically different in their merger analysis (ex ante in the current law; ex post in the post law), moving away from symmetry.
2016/04/14
