Chocolate with pepper: the clash of principles in the Nestlé-Garoto case

Abstract

The acquisitions of Nestlé Brasil Ltda. and Chocolates Garoto S.A, both company enterprises, spanned 18 years in the judicial and administrative fields. This case is particularly interesting because it commenced when the revoked competition law was still valid and its legal procedure duration lasts until present day, in the validity of the new competition law. Since 2002, after the application for the acquisition was submitted to CADE, there have been a series of stalemates that restricted it, as the chocolate market, at the time, was not yet well segmented. In this scenario, most of the opinions were unfavorable to the transaction, giving rise to CADE's first unfavorable decision. Currently, there is a pending judgement by the TRF of the 1st Region. The decision, which will be final, must consider the values of company preservation, free initiative, consumer protection and competition defense. The objective of this paper is to evaluate, from a principiological point of view, the most adequate solution for the acquisition process. In methodological terms, this study chose to analyze a case study and utilize bibliographic and documentary sources with the qualitive method. In conclusion, the most adequate solution is to approve the operation with restrictions, to be pointed out by the companies themselves and evaluated, sequentially, by CADE.