Brazil's CADE consults on narrower merger filing rules and a rewrite of its statutes

Brazil's competition authority has put two rulebooks out for consultation at once: the resolution that decides which deals must be notified, and the statutes that govern how the authority itself works. The Administrative Council for Economic Defense (CADE) opened both consultations on 23 September, with contributions due by 6 November 2026, according to its statements on the merger notification and statutes proposals.

Fewer filings, sharper control tests

The first proposal updates CADE Resolution 33/2022, which regulates merger notifications under Article 88 of Law 12,529/2011 and sets the rules for fast-track review. It was drafted by a Tribunal working group set up in July 2026 and keeps both the core structure of Brazilian merger control and the statutory turnover thresholds, CADE said. The aim is to make notification criteria more predictable, reduce filings of minor relevance and free capacity for more in-depth reviews, according to the statement.

The main changes in the draft, as CADE describes them:

• Minority stakes: acquisitions of control remain notifiable, but for non-controlling acquisitions the draft introduces a threshold based on an increase in equity interest of 20 per cent or more, alone or together with earlier acquisitions. Acquisitions by a sole controller and transactions that merely strengthen joint control are exempt under conditions set out in the draft.
• Economic groups: the 20 per cent equity test for defining a group should apply to companies in which entities under common control hold an interest, so that minority investors above the party to the deal are not automatically pulled into the group.
• Carve-outs: in sales of companies or parts of a business, the seller's turnover should reflect the business actually transferred, with safeguards against artificial restructuring and successive transactions within two years. Asset acquisitions are expressly excluded from this rule.
• Control: presumptions of control are systematised by reference to rights over voting, management and competitively relevant decisions, distinguished from rights that only protect an investment.
• Fast track: conversion to the ordinary procedure requires a reasoned decision. The draft lists factors that may justify keeping a deal out of fast-track review, such as buying a disruptive or disciplining competitor or a recent or potential entrant, cross-shareholdings, and markets with a history of coordination. CADE says these serve a procedural purpose and are not a presumption of harm.

CADE's power under Article 88, paragraph 7, to require notification of deals below the thresholds within one year of closing is preserved, and the draft allows general guidelines on its use, including for deals in concentrated sectors or involving cross-shareholdings, strategic assets or technological change, the statement says. Rules for investment funds are unchanged for now. The draft and the working group's explanatory memorandum are on the Brasil Participativo platform.

A new planning committee and mandatory consultations

The second proposal replaces the statutes in force since 2018 and folds in rules now spread across separate resolutions, including those on confidentiality, access to documents and virtual sessions, according to CADE. It creates a Competition Policy Governance and Planning Committee, made up of the President, two Commissioners, the Superintendent General, an Assistant Superintendent and the Chief Economist, which will propose a priority agenda every two years setting out the sectors and practices CADE intends to watch. The agenda will itself go to public consultation for at least 30 days.

Public consultation of at least 45 days becomes mandatory before CADE approves any regulation affecting economic agents. The draft introduces amicus curiae participation, lets CADE require participants and consultation respondents to declare interests, affiliations and funding sources, and sets a 15-day limit in summary merger cases and 30 days in ordinary ones for deciding third-party applications to intervene, the statement says. Cases will be allocated among Commissioners by electronic draw, decisions on requests for preventive measures will have a 180-day limit extendable once by 60 days, and decisions will be sent to prosecutors, identified victims and injured public bodies so they can seek redress.

"The proposal enhances CADE's operations by establishing clear procedures for practices the authority already performs routinely but which lacked formal rules, thereby offering greater legal certainty to economic agents," Acting President Diogo Thomson de Andrade said, according to the statement. Contributions on the statutes go through a separate consultation page, and CADE plans to submit the final version to its Tribunal before the end of 2026.

For foreign investors, the merger draft is the more immediate change: the new 20 per cent increment test for minority stakes and the narrower group definition determine whether a stake purchase in a Brazilian company needs CADE's clearance at all.