CADE authorizes the acquisition of DASA shares by Grupo Bueno
The Administrative Council for Economic Defense – CADE approved with restrictions the acquisition of ordinary shares of Diagnósticos da América S/A – DASA by Cromossomo Participações II S/A – CP II, which belongs to the entrepreneurs Edson and Dulce Bueno, from Grupo Bueno. With the transaction, Grupo Bueno, which already owned 23.59% of the shares of DASA, will control more than 70% of the company.
The Reporting Commissioner of the case (Merger File nº 08700.002372/2014-07), Alessandro Octaviani, agreed with the understanding of CADE’s General Superintendence that the competitive problems derived from the increase in the participation of Grupo Bueno in the DASA company were already pointed in the analysis of the control acquisition of MD1 Diagnósticos S/A by Grupo DASA (Merger File nº 08012.010038/2010-43). The transaction was approved by CADE’s Tribunal on last December conditioned to the signature of a Performance Agreement (TCD for its acronym in Portuguese). On the terms of the agreement, Grupo DASA committed to divest assets in the city of Rio de Janeiro and to not make acquisitions in cities of the states of São Paulo, Rio de Janeiro and Paraná, amongst other obligations.
CADE’s Tribunal understood that the imposed restrictions to the merger previously decided are enough to address the competition concerns detected in the new transaction. Therefore, the Council approved the proposal of the Merger Agreement (ACC for its acronym in Portuguese) presented by Grupo Bueno, through which the entrepreneurs commit to formally adhere to the obligations already stated on the term previously signed with CADE. The ACC is the mechanism of the current Competition Law (Law 12.529/11) and is equivalent to the TCD, applied under Law 8.884/94.
“Even though the agreement already signed with CADE is applicable, directly or indirectly, to all the groups involved in the former transaction, the new proposal reiterates the terms set out and can be understood as important to highlight and formalize the binding of Grupo Bueno to the agreed obligations. Thus, Edson Bueno and Dulce Bueno admit, personally and for all companies of Grupo Bueno, the determinations imposed by the agreement previously signed”, explained Octaviani.
The Reporting Commissioner stated, however, that two clauses in the current agreement signed in the previous transaction were not replicated in the present agreement. The first refers to the obligation of disinvestment by DASA in cities of the state of Rio de Janeiro. According to him, the determination can only be fulfilled by DASA itself, which holds the assets that need to be divested.
The clause that determines the contracting of independent auditors to monitor the fulfillment of the obligations imposed on the agreement was also removed from the ACC. To Octaviani, there is no reason why the commitments imposed on TCD need to be monitored by a second auditor company.