O impacto das fusões e aquisições no direito concorrencial: função do CADE no equilíbrio econômico

Abstract

This paper analyzes the impact of mergers and acquisitions on Brazilian competition law, focusing on the role of the Administrative Council for Economic Defense (CADE) as a guardian of economic balance. It begins with a historical retrospective of competition law in the world and in Brazil, highlighting how concerns about anticompetitive practices have evolved from Antiquity to modern legislation, shaped by historical contexts such as mercantilism, the Industrial Revolution, and the Latin American colonial period. The study also explores the objectives and principles of competition law, pointing out divergences between the neoclassical school (focused on economic efficiency) and the ordoliberal school (prioritizing the protection of competition as a value in itself). It then addresses the forms, business aspects, and impacts of mergers and acquisitions in the Brazilian market, highlighting that, although they can generate economic gains, they also present risks of market concentration and harm to consumers. In the regulatory sphere, the paper details the role of CADE, its institutional evolution and its practical performance, with special emphasis on the Nestlé/Garoto case. The study demonstrates how CADE, following international standards, initially rejected the transaction to avoid excessive concentration, but, after significant changes in the market and behavioral agreements, conditionally approved the transaction years later. Thus reinforcing the importance of competition law that is attentive to the Brazilian economic reality and the balance between market freedom and social justice. To achieve these objectives, the inductive method was adopted, starting from the analysis of specific cases and relevant historical experiences to build a general understanding of the role of competition law and the performance of CADE. This approach allowed conclusions to be drawn from the observation of institutional practices and concrete economic effects, enabling a critical, well-founded study that is connected to the national reality.