Ambiguous merger notification rules are prompting companies to err on the side of caution and increasing administrative costs.
Companies in Brazil are increasingly notifying M&A transactions to the country's antitrust authority, Cade, over concerns about potential fines stemming from ambiguous merger notification rules. According to a survey by law firm TozziniFreire Advogados, the number of filings involving investment funds increased by about 40% between 2020 and 2025.
Lawyers say the main driver behind the increase is legal uncertainty surrounding Cade’s Resolution 33 of 2022. The regulation governs the notification of economic concentration transactions but, according to experts, contains ambiguous concepts, particularly regarding the definition of an “economic group” and the criteria for determining control.
Facing the risk of fines of up to R$60 million, as well as the possible unwinding of a transaction, companies increasingly choose to notify Cade even when a deal appears to raise no competition concerns. According to partners at TozziniFreire, this practice adds to Cade’s workload and increases the so-called Brazil Cost—the combination of bureaucratic, regulatory, and structural obstacles that raises companies’ operating costs in the country.
Cade’s statistics illustrate the trend. In 2024, the authority received 712 merger filings, of which 680 (95.5%) were approved without restrictions. In 2025, the number of reported transactions rose to 873, with 818 deals (93.7%) cleared unconditionally. Overall, the volume of merger notifications increased by more than 22% year on year.
One factor behind the rise in filings was Cade’s 2024 decision in the Jusbrasil–Digesto case. The authority found that the parties had implemented the transaction before obtaining regulatory approval. However, it later clarified that the assessment of shared control should take into account not only an investor’s ownership stake but also its political and economic rights. No fine was ultimately imposed.
Cade has confirmed that it is working to update Resolution 33. At the end of June 2025, the authority established a new working group to prepare amendments to the regulation.
Experts also argue that the revenue thresholds triggering mandatory merger notifications have become outdated. The thresholds have remained unchanged since 2012 and, according to lawyers, should be revised in line with recommendations from the Organization for Economic Cooperation and Development (OECD). Updating them would reduce the number of purely formal filings and allow the authority to focus on transactions that are economically significant.
At the same time, some specialists note that Cade’s approach is evolving. Rather than relying primarily on formal criteria, the authority is increasingly focusing on the economic reality of transactions and investors’ actual ability to influence them—an approach that has become particularly important given the growing use of complex investment fund structures and international investment vehicles.
Source: Valor International
