Marcela de Carvalho and Sergio Ferraz e Opice 

On July 1, 2016, Commissioner Cristiane Alkmin, of the Tribunal of the Administrative Council for Economic Defense (CADE), issued an order calling back Concentration Act No. 08700.003636/2016-01. The act involves the acquisition of União de Lojas Leader S.A. by Legion Consumer Assets I LLC, a company belonging to Fabio Soares de Carvalho Miranda, who controls Casa & Video Rio de Janeiro S.A. and Brasbunker Participações S.A. The acquisition was approved without restrictions by CADE′s General Superintendence (SG) and published in the Official Gazette on June 16, 2016.

The call-back doctrine was incorporated into the Brazilian antitrust system by Law No. 12,529/11 and is basically the possibility of the Tribunal, upon the initiative of one of its Commissioners, to request an additional analysis of transactions, administrative investigations, and preparatory procedures filed by SG.

Law No. 12,529/11 and CADE′s Internal Rules establish that the call-back must be requested within fifteen days after the publication of the order issued by SG, which, in cases of concentration acts, prevents the consummation of the transaction until a final decision is rendered by the Tribunal. The Commissioner calling back the order of SG has asserted jurisdiction to refer the matter to the Plenary Session, and the case is distributed to a Reporting Commissioner in the event of approval.

In this case, the case at issue was distributed to Commissioner Alexandre Cordeiro before the call-back request was analyzed by the Plenary Session, a fact that became a high point of debate at the 89th Ordinary Trial Session held on July 27, 2016.

Interim President Márcio de Oliveira Junior and Attorney-General Victor Rufino understood that the early distribution would be justified by the systematic interpretation of the rules and principles of law. They stressed that, if the rules were applied literally in this case, the proceedings would be left without a Reporting Commissioner and, therefore, a representative between the parties and CADE. This would occur for a period of about one month until the next trial session, which would be undesirable and even inadmissible, since the parties would be affected by the slow pace of the Public Administration.

On the other hand, Commissioners Cristiane Alkmin and João Paulo de Resende argued that the internal rules were clear as to the procedural requirements applicable to call-back cases, which would mean that the act could only be distributed after the approval of the call-back order.

After an interesting and fruitful discussion, the Plenary Session decided by a majority not to approve the call-back request, thus prevailing the understanding that there would be no justification for further analysis of the transaction.

In almost five years since the enactment of Law No. 12,529/11, this was only the fourth call-back request of a concentration act made by members of the Tribunal. The other three cases involved two non-exclusive licensing transactions of intellectual property rights by Monsanto do Brasil Ltda. and the acquisition of ISCP Sociedade Educacional S.A. by ICE Inversiones Brazil S.L.