Is there a pattern in Cade’s use of trustees to assist in monitoring agreements? An analysis since Law No. 12,529/2011 came into force

Abstract

Context: the implementation of decisions, agreements, and commitments in the context of merger control and conduct investigation by antitrust authorities has been accompanied by a growing phenomenon, especially at the Administrative Council for Economic Defense – CADE: the use of external agents, known as trustees, to assist in the monitoring and implementation of remedies. These third parties play a fundamental role within the antitrust system by reducing the regulatory and financial burdens on the authorities, ensuring that the parties comply with their commitments.

Objective: based on an analysis of the use of trustees by the Administrative Council for Economic Defense since Law 12,529/2011 entered into force, this article aims to explore, non-exhaustively, preliminarily, whether the Brazilian antitrust agency sets clear criteria to define whether trustees are necessary and relevant to assist the agency in monitoring settlements in cases of both merger control and investigations. More specifically, this paper seeks to understand how the use of trustees evolved over time and if there is or not a pattern for the use of such tool by Cade, especially looking into the nature of negotiated remedies and frequency that this tool has been used in each case.

Method: exploratory and jurisprudential method.

Conclusions: although the use of external agents to monitor remedies appears to be more frequent, the results found are ambiguous. Sometimes Cade is clear about when a trustee would be relevant and necessary, sometimes not, especially in situations involving behavioral remedies.