Failing firm defense e sua aplicação na jurisprudência do CADE à empresa em crise: juridicidade, parâmetros de aplicação e solução de conflitos

Abstract

This master thesis aims to study the main characteristics of the failing firm defense theory, its origins, and fundamental elements. In the course of the study, special attention was given to the American system, which was a pioneer in its adoption and serves as a reference for competition law in other jurisdictions, particularly in Brazil. Throughout the work, an analysis was conducted on aspects related to bankruptcy and insolvency, which are currently regulated by Law number 11.101/2005, and national antitrust legislation, currently regulated by Law number 12.529/2011, with insights into the examination of Merger Control from the perspective of both competition defense and company preservation. In this context, as demonstrated, the roles of the bankruptcy court and the antitrust authority gain significance in Merger Control cases involving company recovery, considering the necessary coordination between their functions. The dissertation seeks, in conclusion, to present criteria and questions for the adaptation of the failing firm defense to the Brazilian legal system in matters of antitrust and bankruptcy law, despite the lack of express legal provisions. Within this scope, the balance between company preservation and competition defense becomes crucial in the context of Merger Control related to companies in crisis. To accomplish this, the hypothetical-deductive approach method was employed, along with a bibliographical and documentary research procedure.