Transactions with limited effects in Brazil remain subject to mandatory notification – for now
In a decision issued today (July 1), CADE’s Tribunal overturned the approach previously adopted by CADE’s General Superintendence (GS) in the Foxconn/Mitsubishi Fuso Bus case. As a result, the de minimis threshold that had been exempting certain international transactions with limited effects in Brazil from mandatory notification is no longer valid.
As anticipated in our previous Newsletter, since April 2026, the GS had taken the position that transactions involving target companies or assets located abroad with less than BRL 75 million in annual revenues generated in Brazil are not subject to mandatory notification to CADE – even where the seller’s economic group meets the statutory turnover thresholds established under the Brazilian Competition Act (Law No. 12,529/2011). Over the past two months, the GS applied this approach in several cases, signalling a significant shift in CADE’s decisional practice. Not only did it effectively introduce, for the first time, a de minimis threshold for merger control purposes, but it also established a different jurisdictional standard for foreign-to-foreign transactions as compared to purely domestic transactions.
In overturning the GS’s decision, the Tribunal made clear that exceptions to the statutory notification criteria cannot be created through administrative decisions in individual cases. According to the Tribunal, any such exception would require a proper legal or regulatory basis, such as an amendment to the legislation or to CADE’s own merger control regulations. In practical terms, the decision reaffirms the current legal framework: international transactions continue to be assessed based on the turnover thresholds set forth in Article 88 of the Brazilian Competition Act, regardless of the target’s revenues in Brazil – i.e., regardless of the magnitude of the transaction’s local effects.
Importantly, the Tribunal’s new understanding will apply only to future cases: according to the Commissioners’ votes, transactions over which the GS declined jurisdiction based on its previous approach will neither be affected nor reexamined, particularly because many of those decisions have already become final.
The decision, however, does not put an end to the broader debate regarding the need to revise Brazil’s merger notification criteria. On the contrary, the Commissioners emphasized that the case highlights the desirability of revisiting the notification criteria currently established under CADE Resolution No. 33, in order to ensure that mandatory filings capture only those transactions that genuinely warrant antitrust review, thereby avoiding unnecessary costs for both the public administration and private parties.
In this context, Acting President Diogo Thomson announced that he intends to submit for approval a decision establishing a dedicated working group to review the conclusions reached by the working group previously created by the GS to discuss potential amendments to CADE Resolution No. 33. The expectation is that the proposals resulting from this initiative will be released for public consultation in the near future.
This development demonstrates that the debate is far from over: it may ultimately lead not only to the adoption of new notification criteria for international transactions, but also to a broader review of Brazil’s merger control framework, potentially encompassing changes to the turnover thresholds, rules governing asset acquisitions, control transactions, and other jurisdictional criteria.
The topic is being monitored by Lefosse’s Competition and Antitrust team. For clarification on any points of interest related to the matter, as well as any other related subject, please contact our professionals.
