CADE’s Superintendence orders the presentation of two unnotified transactions
CADE’s General Superintendence ordered, on 21 September 2015, the notification of the acquisition of Banco Carrefour by Itaú Unibanco and also the transaction through which TAM Linhas Aéreas S/A signed codeshare contracts with Total Linhas Aéreas S/A and Trip Linhas Aéreas S/A, on 21 September 2015.
The two transactions should have been notified to CADE, once they meet the mandatory notification criteria, established by the former Law 8.884/94, which was in force by the time the transactions were carried out.
Concerning the acquisition, in April 2011, of 49% of the capital stock of shares of Banco Carrefour by Itaú Unibanco, CADE’s General Superintendence only became aware of the operation through news published by the press. As a result, CADE started a Merger Administrative Process (File no. 08700.009520/2015-97) in order to assess the failure to notify the transaction to the authority.
Regarding the signature of codeshare contracts between TAM and Total in the period of 2004 to 2008 and between TAM and Trip starting in 2008 – when Total was acquired by Trip – the contracts were reviewed by the antitrust authority, in the merger analysis of the acquisition of Trip by Azul S/A (Merger file no. 08700.004155/2012-81), which was approved with restrictions by CADE. The failure to notify these codeshare contracts was analyzed through the Merger Administrative Process no. 08700.009513/2015-95.
With the signature of the administrative orders, the companies will have to notify the operations, which will be analyzed by CADE, according to the provisions of Law 8.884/94. Independently of deciding on the merit of the mergers, the companies may be subject to the payment of fines for intempestivity, for not notifying during the legal deadline established by the previous legislation, which was of 15 days after the contract signature or any binding document referring to the operation.
After the General Superintendence’s analysis, the mergers will still go to CADE’s Tribunal, which may confirm or not the Superintendence’s opinion.