Arguments of previous operations involving the sale of assets and Marfrig () participation can be revisited by the Administrative Council for Economic Defense (Cade) in the process of merging with BRF (), says former president of the agency and partner of GO Associados, Gesner Oliveira. Considering the history, the decision may even take more than the usual 240 days of analysis established by the agency.
The expert’s assessment is that the cases of BRF’s own participation purchase at Marfrig in 2021 and the alienation of 13 Marfrig plants to Minerva () in 2023 will be the main jurisprudence for the case. “Since Cade usually systematically resumes jurisprudence in its analysis, it is possible that it pervades the points already considered as possible concerns in the past,” says Oliveira.
Among these points evaluated by the Board in previous cases that could be reevaluated in the analysis of the merger are the effects of corporate interests; conglomerate effects; possibility of collusion; and purchasing power of the applicants.
In the case of the purchase of 32% of Marfrig by BRF in 2021, CADE’s General Superintendence suggested for unrestricted approval, when the vertical integration between the fresh meat market, upstream and the processed beef market has undergone deeper analysis. The reading was that the vertical relationship would not be able to limit competition.
Already in the operation of 2023, there was approval with the imposition of the alienation of a plant in Goiás, due to the concerns of Cade regarding the concentration resulting from the operation regionally.
Although Oliveira believes that it is not possible to respond, for now, if the merger generates any competitive risk, the former president of CADE states that the last operation Marfrig passed in 2023, “had a broader analysis because of the resulting concentration.”
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On the companies side, the arguments for the merger must follow the previous jurisprudence. “In particular, the two cases mentioned earlier,” says Oliveira. “In the case of the purchase of participation of Marfrig by BRF, Marfrig justified the complementarity between the activities of the companies, and highlight that it would not have a dominant position in any of the links in which there would be vertical integration,” he says.
In Minerva and Marfrig, he explains, Minerva cited the opportunity for “scale saving and scope gain for the purpose of efficiency gains to better serve its customers in Brazil and abroad”.
The deadline for analysis by Cade is 240 days, extendable for up to 90, depending on the case.
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In the case of Marfrig and BRF in 2021, the opinion took 118 days from the notification. For the acquisition of Marfrig plants by Minerva, however, there were 225 days between notification and opinion, and another 47 days for court analysis – a total of 273 days.
“It is possible, therefore, that the analysis by the cade [sobre a fusão] Take more than the usual 240 days, depending on the current scenario brought by the applicants, ”says Oliveira.
