CADE authorizes the selling of Odebrecht’s participation in Rio de Janeiro Aeroportos
In the judgment session of 13 December, the Tribunal of the Administrative Council for Economic Defense – CADE conceded, unanimously, a Preliminary injunction authorizing the immediate closure of the Merger 08700.007756/2017-51, involving the Excelente B. V. and the Rio de Janeiro Aeroportos.
In the operation, Excelente acquired 60% of Odebrecht’s shares of Rio de Janeiro Aeroportos, with the consequent control of 100% of the company shares, controller of the concessionaire of the Antônio Carlos Jobim International Airport (Galeão).
Excelente will replace HNA Infrastructure Investment Group Co., Ltd., who had showed interest in the 60% of participation in Rio de Janeiro Aeroportos, by means of the Merger 08700.004105/2017-17.
HNA, however, did not obtain in the period stipulated by the National Civil Aviation Agency (ANAC in its acronym in Portuguese) all the authorizations demanded by the Chinese Government for the operation and, hence, Odebrecht conceded the right of preference to Excelente.
CADE’s General Superintendence had recommended the approval without restrictions of the fast track operation on 11 December 2017. In its manifestation, it opined for the deferral of the Preliminary injunction requesting authorization of the immediate closure of the Merger, since it falls under the situations provided by the article 155 of CADE’s Internal Guidelines.
CADE’s Internal Guidelines establishes that a Preliminary injunction can be conceded when there is no risk of irreparable harm to the competition conditions in the market; the measures for which authorization is requested are fully reversible; and the applicants present evidence of imminence of substantial and irredeemable financial losses to the acquired company.
In its vote, the report commissioner, Mauricio Oscar Bandeira Maia, considered that the financial losses resulting from a delay in the clearance of the operation were evidenced in the documents, since the deadline conceded by ANAC for the payment of the first portion of the concession of Galeão Airport, BRL 1,167 billion, was scheduled to 20 December 2017.
In case of failing to allow the deal to close by its deadline, Concessionária Aeroportos would not receive the due and necessary capitalization for the payment, which could interrupt the activities in the Galeão Airport.
The parties would have to wait a 15 days term for closing the operation, since an appeal from third parties or a request for further review by other Commissioners would be possible. However, the term would end after the deadline stipulated by ANAC, which would invalidate the operation and put in risk the continuity of the Galeão Airport’s activities.
Mauricio Bandeira also declared of no interest the Merger 08700.004105/2017-17, since its object was dropped. “In case of the absence of such declaration, two companies will have the authorization to detain, at the same time, 60% of the social capital of Rio de Janeiro Aeroportos, which does not have logic consistency with the reality”, said.