On February 12, 2025, the Plenary of CADE (Administrative Council for Economic Defense) – the Brazilian competition authority – judged a Consultation presented by Bompreço, a subsidiary of Carrefour Group. The Consultation sought to obtain a clearer position from CADE regarding the criteria that should be considered for the mandatory notification of sales and purchases of real estate to the antitrust authority.
According to the response to the Consultation, acquisitions of real estate assets, even if not between competitors, must be submitted to CADE when it falls under one of the following scenarios:
- The property is part of a commercial establishment.
- The property is an operating asset or has productive capacity that could be easily harnessed by the buyer.
- There is a correlation between the intended use of the assets and the buyer's business sector.
- The property represents an essential asset, especially in regulated sectors.
According to the decision, for a property not to be classified as operational, it must have been inactive since before the commercial negotiations that precede the operation.
The filing of the transaction may be mandatory if the acquisition includes other tangible or intangible assets such as contracts, customer portfolio, brands, machinery, supplies, among others.
CADE also emphasized that transactions involving the transfer of real estate between competitors operating in the real estate sector are an exception to such criteria of analysis and may be subject to mandatory notification.
The theme was revisited soon after the response to the Consultation. In March 2025, CADE's General Superintendence reviewed a Merger Filing between companies Klabin and Kimberly-Clark. The case involved the acquisition of a non-operational industrial plant, including real estate and certain related equipment. The decision reinforced previous understanding that a property inoperability is not a determining condition for not filing, and that a holistic analysis of the case is required. The authority reaffirmed the application of requirements determined in previous cases by the General Superintendence: (i) essentiality of the asset, (ii) specific destination and (iii) capacity to increase the productive capacity of the acquirer.
Although such decisions outline more precise criteria on the subject, a careful case-by-case analysis remains necessary, since some aspects of the transactions may be borderline.
Beyond the merits of the Consultation – which applies strictly to the specific situation analyzed – it follows that CADE has been more receptive to Consultations in cases of legitimate doubts about the obligation to notify certain transactions to CADE.
Our Antitrust team is available for any additional clarification.
