Regulação e concorrência no setor bancário e c Conflito de atribuições CADE vs BACEN

Abstract

This paper analyzes the debate that has lasted for over twenty years regarding the conflict of jurisdiction between the Central Bank of Brazil and the Administrative Council for the Defense of Competition regarding the review of mergers involving institutions within the Brazilian Financial System. This conflict aims to contribute to furthering this ongoing discussion. The main aspects of the controversy involving the two agencies are thoroughly explored, emphasizing the arguments raised by CADE and BACEN to assert their exclusive jurisdiction. Likewise, the paper analyzes the nuances and implications of Opinion GM-20 of the Attorney General's Office, which points to the exclusive jurisdiction of the Central Bank to review mergers within the Financial System. This paper then analyzes alternative dispute resolution methods within the federal public administration, highlighting the need to modernize Brazilian administrative practices through consensual solutions, even in a context of high technical and legal complexity. Finally, the study will address the normative exchanges agreed upon by consensus between the two agencies, as well as the legislative proposals currently under consideration that aim to end the conflict by establishing complementary jurisdiction and integrated action between the antitrust authority and the regulatory authority. It will highlight that, although the Legislative Branch and the parties involved have already offered a solution to the case, these arrangements have not yet been implemented, demonstrating the importance and relevance of the issue. Furthermore, applying the theory of complementary action between the regulatory and antitrust authorities, it appears that CADE does not have a monopoly on competition in Brazil. Finally, this study also highlights the concern that, despite the sector's economic relevance, doubts still linger over banking competition investigations, lingering in a scenario of legal uncertainty and legislative delays.