CADE opens public consultation on merger notification

On 23 September, the Administrative Council for Economic Defense (CADE) opened a public consultation on proposed updates to CADE Resolution 33/2022, which regulates notifications of merger transactions under Law 12529/2011, Article 88, and establishes rules for fast-track procedures.

Companies, law firms, associations, civil society organisations, researchers, and other interested parties may submit their contributions until 6 November 2026 via the link.

The proposal was developed by the Tribunal Working Group established in July 2026 to review Resolution 33/2022, as part of the review launched in 2025—which played an important role in identifying and systematising improvements in the Resolution. The new stage builds on this body of institutional knowledge and includes issues identified both through subsequent experience in applying the Resolution and recent precedents of the Tribunal.

The core structure of the Brazilian legal framework of merger control is preserved, as well as the statutory turnover thresholds. The review seeks to make notification criteria more predictable, reduce notifications in cases of minor relevance to structural control, and promote a more efficient allocation of CADE’s institutional capacity.

“Resolution 33 update is part of CADE’s periodic review of its rules and procedures. The proposal gathers adjustments identified over the course of the Resolution’s implementation and seeks to reflect the institutional experience gained since it was issued. The public consultation will broaden the dialogue with interested parties, collect contributions on different aspects of the proposal, and inform the subsequent stages of analysis, as well as any further improvements to the text before its final consideration”, stated Interim President Diogo Thomson.

In its explanatory statement, the WG presents the review as an effort to enhance objectivity and predictability, and to better reflect the economic substance of transactions. The document states that “the review preserves the legal framework for merger control” and that “another guiding principle of the proposal is the relationship between objectivity and selectivity”. It also emphasises that “the presumptions (of control) are considered alongside an assessment of the rights and circumstances of each individual case”. 

The review is expected to help reduce the number of mandatory notifications in certain circumstances, freeing up institutional capacity for more in-depth assessments and selective use of the provisions of Law 12529/2011, Article 88,

Paragraph 7, which authorises CADE to require the notification of transactions that did not meet the objective turnover thresholds within one year of closing. The proposal preserves this power and allows for the issuance of general guidelines on its application, including on transactions that, although falling outside the ordinary notification criteria, may raise competition concerns due to features of concentrated sectors, cross-shareholding structures, strategic assets, technological change, or new approaches of economic organisation.

Key changes to notification criteria

The review focuses on specific aspects of Resolution 33/2022. The proposal clarifies that the 20% equity interest threshold used to determine the scope of an economic group should apply to companies in which entities under common control hold an interest, to avoid automatic extensions of the economic group to minority investors positioned above the party directly involved in the transaction.

A specific rule is also proposed for certain transactions involving the transfer of companies or parts of a business, so that the seller’s turnover reflects the economic scope of the business actually transferred. The draft provides for safeguards against artificial restructuring and successive transactions carried out within a two-year period.

Another key area is the systematisation of presumptions of control, with reference to rights relating to voting, management, and decisions relevant to competition, while maintaining the distinction between such rights and those intended to protect investments.

In acquisitions of equity interests, transactions resulting in the acquisition of control remain subject to notification. For non-controlling acquisitions, the proposal introduces a threshold based on an increase in equity interest of 20% or more, considered either individually or together with previous acquisitions. Under the conditions set out in the draft, acquisitions by a sole controller and transactions that merely strengthen joint control are also exempt from notification.

When a notification is not signed by all the parties directly involved in the transaction, a justification and full details of the non-notifying party will be required.

The review also introduces targeted adjustments to the fast-track procedure. The proposal clarifies that conversion to the ordinary procedure requires a reasoned decision and, in such cases, provides for the submission of the additional information required under the ordinary procedure. The draft also sets out factors that may justify a transaction that is not qualified for the fast-track procedure, such as the acquisition of a market player with a disruptive or disciplining competitive role, acquisition of a recent or potential entrant, cross-shareholdings, and markets with a history of coordination or other practices that facilitate collusion. Such factors serve a procedural purpose and do not constitute a presumption of harm to competition.

Investment funds and asset acquisitions

The specific rules applicable to investment funds remain unchanged at this stage. The WG concluded that the matter could be examined in greater depth at a later stage, based on a targeted information-gathering exercise on how the current rules operate in practice and the investment structures submitted to CADE.

The proposal does not introduce specific rules for asset acquisitions, an area that is not specifically regulated by Resolution 33/2022. The new calculation rule of the seller’s turnover was designed for transactions involving the transfer of companies or parts of a business and therefore expressly excludes acquisitions of tangible or intangible assets. The matter may be examined in future analyses, based on a targeted review of CADE’s decision-making experience and the available data on that.

How to participate

Contributions may be submitted until 6 November 2026 through the channel.

The draft amendment to Resolution 33/2022, the expert opinion, and the Tribunal Working Group’s Explanatory Memorandum are available here.

The contributions will be considered in the proposal and may result in drafting changes such as the addition, removal, or reformulation of provisions before the final version is submitted to the Tribunal of CADE.