Artigos - Postado em: 01/07/2014

(English) The Supreme Court of Justice of Brazil confirmed the competence of the Central Bank to analyze mergers and acquisitions operations in the bank sector

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A monocratic decision, pronounced on June 6th and published on June 27th by the Chief Justice José Antônio Dias Toffoli, of the Supreme Court of Justice of Brazil (Supremo Tribunal Federal), has rejected the extraordinary appeal (RExt) filed by the Administrative Council of Economic Defense (CADE), and has given to the Central Bank the exclusive competence to analyze mergers and acquisitions operations in the banking sector.

The appeal questioned a decision pronounced by the Superior Court of Justice (STJ), whereby is stated that the analysis of concentration, mergers or acquisition acts related to the National Financial System has always been assigned to the Central Bank, the regulatory agency that is responsible for regulating and supervising the system as a whole, in accordance with Law n° 4.594/64. On the other hand, CADE is responsible for supervising the concentration business operations, in accordance with Law n° 8.884/94 (repealed by Law n° 12.529/2011).

 In this decision, the Minister followed the legal opinion of the attorney general of Brazil, Rodrigo Janot, which demonstrated that matters referring to an infra-constitutional law, more specifically to the Law n° 8.884/94, repealed by Law n° 12.529/2011 and the Financial System Law, n° 4.595/64, should not be judged by the Supreme Court of Justice (STF). It is important to notice that the actual Minister, Toffoli, pronounced a legal opinion which was favorable to the Central Bank in 2009, when he was still the attorney-general of Brazil,  for it to be exclusively competent for the analysis of concentration business operations on the banking sector. This dispute was generated by a legal opinion (Legal Opinion GM-20) pronounced in 2001, by the ancient attorney general of Brazil, Gilmar Mendes, actually Minister of the Supreme Court, which concluded that the Central Bank was competent to analyze mergers and acquisitions in the banking sector. Therewith, the Supreme Court of Justice (STF) and the Superior Court of Justice (STJ) understood that this legal opinion has a binding character to the Administration, imposing itself to the Law n°

 8.884/94. Nevertheless, CADE has continued to analyze the business operations aforementioned, until the case came to the Superior Court.

After this decision, CADE will be forced to only analyze anticompetitive practices of the financial system, being the Central Bank the competent authority to analyze concentration acts.

Filipe Ribeiro Duarte –  Lawyer of the Consulting Team 

 

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