I OVERVIEW

2016 marked the four-year anniversary of the new Brazilian competition defence system, which entered into force in May 2012 when the current Brazilian Competition Act (Law No. 12,529/2011) revoked the previous Act (Law No. 8,884/94). The institutional framework introduced by the new system (which concentrated the roles of three competition agencies into one) has proven to be a significant improvement and added more efficiency to competition enforcement in Brazil, eliminating the unnecessary overlaps caused by the previous system.

Under the previous system, the existence of three competition agencies, with overlapping responsibilities, used to cause delays in the processing of investigations for anticompetitive conduct and in the review and approval of mergers. Under the current institutional design, the Administrative Council for Economic Defence (CADE) is responsible for enforcing competition law issues at the administrative level, which is organised into three divisions or units: the Office of the Superintendent General (SG), the Administrative Tribunal and the Department of Economic Studies.2

The current Competition Act also introduced a pre-merger review system, replacing the previous post-merger review system.3 The new merger control model has exceeded expectations as to timing and efficiency and CADE has been able to review and clear merger filings at a fast pace. In this regard, CADE continues to impress with its fast review of merger notifications, with an average review time for case eligible for the fast-track procedure of 16 days; transactions reviewed under the regular procedure are cleared within an average of 73.8 days.4

In 2016, CADE issued a rule formalising the performance standards that it has been adhering to over the past four years: fast-track transactions must now be cleared 30 days from the date of filing. This year, CADE reviewed 384 mergers, imposing restrictions in six cases. Nine cases were challenged by the SG and remanded to the Tribunal for a final review. The SG declined to review a total of 19 transactions that were submitted, concluding that they did not meet the legal turnover thresholds or did not qualify as a concentration act as per the wording of the Brazilian Competition Act.

On the investigations front, 2016 proved to be a very busy year for CADE. The Tribunal tried 31 administrative proceedings, convicting the defendants in 19 of them. The SG concluded 29 opinions in administrative proceedings, recommending the acquittal of defendants in only nine of them. Several international investigations were concluded after years of scrutiny. In deciding a number of such cases, CADE provided some guidance as to the standards it will use to evaluate whether an international cartel produced effects in Brazil, in breach of the Brazilian Competition Act. Additionally, CADE opened a number of promising investigations, three of which originated from the world-famous, ongoing ‘Operation Car Wash’, and concern alleged cartels in public bids.

CADE’s efficiency in handling its pre-merger review system, along with other accomplishments, was praised in the World Economic Forum at Davos in 2016.5 On such occasion, the agency was described as ‘extremely efficient’ and, in fact, ‘one of the most efficient agencies we have seen in the world’. Furthermore, CADE was a finalist of the Antitrust Writing Awards – promoted by Concurrences and George Washington University Law School Competition Law Center – in the ‘Best Soft Law’ category for its recently published Horizontal Merger Guidelines and for its Guidelines on Settlement Agreements in Cartel Cases.6

There has been an increase in the number of complex cases reviewed by CADE and the negotiation of remedies under a pre-merger review system has experienced significant developments. CADE issued new regulations to clarify some grey areas on the applicable rules for merger control and it is expected that it will continue to refine its understanding on certain aspects that still remain controversial.

CADE enacted new regulations during 2016, including new rules concerning the definition of the types of associative agreements that require a merger filing. Additionally, CADE has amended its rules for the setting of fines, allowing the Tribunal to fine-tune the amounts of fines imposed on defendants and to preserve the fine’s deterrence purpose. CADE is expected to reinforce the relevance of cartel prosecution by continuing to foster the leniency programme, and other investigation tools for anti-cartel enforcement. The number of settlements in cartel cases has increased significantly and more settlements are expected to be executed in the near future. Finally, there is some expectation that CADE will take steps to encourage private damage claims for antitrust offences.

II CARTELS

Since 2012, the SG, CADE’s unit responsible for investigating anticompetitive conducts, has been trying to clear the backlog of cartel cases. As of January 2017, the SG had concluded a total of 121 investigations and forwarded them to CADE’s Administrative Tribunal for judgment. In 2016, out of the 29 cases forwarded to CADE’s Administrative Tribunal for judgment, the SG had concluded that, in nine of them, the investigations should be dismissed and that the defendants should not be convicted. At the same time, the fight against cartels remains a top priority for CADE. The SG also carried out at least two dawn raid operations and executed at least 11 leniency agreements in 2016, in addition to others that are currently under negotiation. The SG also filed at least 246 new investigation procedures, most of which are believed to be related to cartel behaviour and are still in their very early stages.7

i Significant cases

In 2016, CADE was able to close several cartel cases through the execution of settlement agreements.

Of particular note is the fact that CADE concluded several high-profile international cartel cases initiated following the execution of leniency agreements, acquitting all defendant companies in some cases, while levying fines on all defendant companies in others. The cases concern the markets for dynamic random access memory (DRAM), a number of plastic products, hermetic compressors and thermoplastic elastomers. The decisions issued in these cases are useful material for the assessment of when international cartels can be considered to have potential or actual effects in Brazil, in violation of the Brazilian Competition Act.

The Brazilian antitrust authorities initiated the DRAM investigation in 20108 based on news of the fact that the European Commission and the US Department of Justice had convicted the companies for engaging in a cartel that was worldwide in scope, and indirectly affected Brazil. Soon after the case was opened, one of the defendants executed a partial leniency agreement, acknowledging participation in the conduct and providing CADE with useful information for the investigation. Subsequently, five other corporate defendants and related individuals executed settlements with CADE, providing additional information and acknowledging their involvement in the cartel. CADE’s Attorney General issued an opinion suggesting that CADE should only take into account ‘predictable, direct and material’ effects when evaluating whether the cartel produced, or was capable of producing, effects in the Brazilian territory. The Tribunal, however, disagreed, reasoning that it was irrelevant whether the effects of the cartel were predictable and whether they originated from direct or indirect sales to Brazil and that proving the ‘materiality of the cartel’s effects’ sufficed. To examine whether the cartel’s effects were material, CADE analysed the volume of direct imports of the cartelised products and their importance for other products exported to Brazil (e.g., PCs, laptops, videogames and printers). CADE’s Tribunal issued its decision in the DRAM investigation in November 2016, levying fines totalling 7 million reais on five companies and two individuals.

On the other hand, CADE’s Tribunal reached a different conclusion when deciding the international cartel cases involving the market for certain plastic products9 and the market for thermoplastic elastomers.10 The reasoning adopted by the Tribunal in both cases was similar: the fact that participants of an international cartel exported to Brazil is not proof of the production of effects in the country if there is evidence that the alleged cartel had a regional scope that did not include Brazil. Based on this standard, CADE concluded in both cases that there was no evidence that Brazil was encompassed – and, thus, affected – by the agreement, which seemingly only affected the markets of Hong Kong and China. As a result, CADE closed its investigation against all defendants due to insufficient evidence, even though there was evidence that the allegedly cartelised products were sold in Brazil.

It is also worth noting that, in 2016, CADE condemned three companies and individuals for engaging in an alleged cartel in the international market for hermetic compressors, imposing fines amounting to 21.2 million reais.11 The Tribunal concluded that there was evidence that the cartel occurred and produced effects in Brazil. The Tribunal did not follow the recommendation by the SG, which had considered in 2013 that the conducts practised by the foreign defendant companies did not have effects in Brazil, as there was no clear evidence that the foreign defendants’ sales into the country were affected by the wrongdoing. In addition, the case is particularly interesting because it was the first case ruled by CADE in which there was international cooperation for the conduction of dawn raids, which in the case at hand occurred in Brazil, the United States and Europe.

CADE’s Tribunal also concluded the investigation of an alleged international cartel in the market for sodium perborate, which was initiated when Evonik Degussa GmbH reported to CADE that, together with Solvay SA, it had divided up the affected market, which was international in scope. CADE levied a 17.4 million reais fine on Solvay; two of Solvay’s employees were acquitted due to a lack of evidence against them.12

In December 2016, the SG concluded another investigation of an international cartel involving the market of optical disc drives13 and recommended the conviction of six companies. According to the SG, this cartel was in place between 2003 and 2009, and produced direct and indirect effects in Brazil. This case is still pending a final decision, and it will be important to see whether the Tribunal will confirm the same understanding adopted in its recent decisions when evaluating whether the alleged conduct produced effects in Brazil.

Moving to the topic of national cartels, in January 2017, CADE’s Tribunal approved settlement agreements proposed by two companies involved in an alleged cartel initiated in 2015, when Setal Engenharia e Construções admitted its participation in a national bid-rigging cartel involving Brazilian oil company Petrobras;14 this case relates to the nationwide scandal known as Operation Car Wash involving corruption, bid rigging and cartel activity in public bids. UTC Engenharia SA and Andrade Gutierrez Engenharia SA executed settlement agreements and paid pecuniary contributions totalling 195 million reais. These two companies were the second and third defendants to settle with CADE in this investigation.

In December 2016, Operation Car Wash also resulted in the launching of at least three new formal investigations at CADE. Two of them originated from leniency agreements executed by construction company Andrade Gutierrez SA. The first one involves an alleged cartel in the public bid for the urban improvement of poor neighbourhoods in Rio de Janeiro.15 In a separate leniency agreement, Andrade Gutierrez reported the existence of a cartel in public bids for the construction of World Cup 2014 stadiums.16 The third leniency agreement was executed between CADE and another construction company, Carioca Christiani Nielsen Engenharia SA, which reported another cartel in Petrobras public bids regarding the construction of an IT data processing centre (CIPD), a research centre (Novo Cenpes) and Petrobras’ headquarters in Vitória, Espírito Santo State.17

Finally, CADE managed to reach resolutions in several investigations through the execution of 61 settlement agreements in 2016, which collectively amounted to 726.2 million reais in financial compensation paid by the defendants.

The SG carried out at least two dawn raids in different markets in 2016, which generally derived from leniency agreements, including the investigation of an alleged bid-rigging cartel in several states related to Operation Car Wash.18

ii Trends, developments and strategies

On 6 March 2013, CADE enacted Regulation No. 5/2013, which modified the rules regarding settlements. The objective of this Regulation was to increase incentives for companies to cooperate by adding more predictability and transparency regarding the amount of contribution to be paid. It contains guidelines on the levels of the monetary contribution to be paid by the settling parties, which will vary depending on, inter alia, the level of cooperation and the moment of the investigation. Parties who are being investigated for cartel behaviour, however, need to acknowledge their participation in the violation in order to be able to settle. Since then, over 200 settlements have been executed under the new Regulation.19 In 2016, CADE’s Administrative Tribunal executed a total of 54 settlement agreements in cases involving several markets; six settlements were rejected by CADE’s Tribunal.20 The resolution of cartel investigations through settlements proved to be a very effective toll to end investigations that could take years to be decided and absorbed a significant amount of public resources, allowing CADE to redirect its limited resources to other investigations and expand its enforcement activities in Brazil.

With the purpose of improving its cooperation with other public authorities also involved in the cases that fall within CADE’s jurisdiction, CADE enacted the following new regulations:

a a memorandum of understanding signed with the Federal Attorney General’s Office in São Paulo, with the purpose of coordinating negotiations of settlement agreements;21 and

b a resolution further detailing Federal Public Prosecution actions, specifying its attributions regarding proceedings involving antitrust violations.22

CADE has also amended Resolution No. 3/2012,23 which governs the setting of fines in conduct investigations – particularly when assessing the revenues registered in the ‘line of business’ in which the violation occurred, which is established by the Competition Act as the fine calculation base. According to this amendment, CADE can adapt the concept of ‘line of business’ to the ‘specificities of the conduct’ in cases where the scope of the line of business is clearly disproportionate and leads to the imposition of a fine much higher or much lower than the one ideally needed for deterrence purposes.

Finally, CADE has submitted to public consultation a set of measures aimed at facilitating private damages claims. These measures include increasing access to investigation documents by plaintiffs and amendments to provisions establishing limitation periods and protection from joint liability for leniency applicants.24

iii Outlook

An examination of cases initiated and concluded in recent years suggests that cartel prosecution continues to be a clear enforcement priority for CADE. Since many cases have been sent by the SG to CADE’s Administrative Tribunal, it is also expected that decisions will be rendered soon in cases that have been under investigation for a long time. Moreover, the Brazilian leniency programme continues to be crucial to CADE’s anti-cartel enforcement efforts, and many recent investigations have been initiated following leniency applications.

In 2016, CADE devoted a substantial amount of resources to the investigations related to Operation Car Wash and it is also expected that these investigations will continue to absorb a significant part of CADE’s enforcement capabilities throughout 2017.

III ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE

i Significant cases

Although CADE has been focusing its efforts on anti-cartel enforcement, in 2016 CADE examined a few cases involving abuse of dominance, some of which are discussed below.

In February 2017, CADE’s Tribunal approved a settlement agreement with Instituto Aço Brasil25 to put an end to a formal administrative proceeding26 investigating the institute for allegedly filing misleading lawsuits in order to harm its competitors – a conduct commonly known as ‘sham litigation’. CADE and Instituto Aço Brasil settled the contribution amount of 271,300 reais, and Instituto Aço Brasil was not required to acknowledge any wrongdoing.

2016 marked significant developments in another sham litigation case. In June 2016, the SG recommended the conviction of three leading automobile manufacturers – Fiat Automóveis S/A (Fiat), Volkswagen do Brasil Indústria de Veículos Automotivos Ltda (VW) and Ford Motor Company Brasil Ltda (Ford) – for allegedly engaging in abuse of dominance. These companies were using judicial and extrajudicial measures to seek the protection of their industrial designs, with the alleged purpose of inhibiting the manufacture and marketing of auto parts. As of March 2017, the case was pending a decision from the Tribunal.

Additionally, in 2015 CADE imposed its first preventive measure following the enactment of the new Competition Act, determining that the Gemini Consortium ceased an alleged discriminatory treatment that supposedly harmed competition.27 The Gemini Consortium is composed of Petrobras, White Martins Gases Industriais Ltda and GNL Gemini Comercialização e Logística de Gás Ltda (also known as GásLocal). The objective of the consortium is the liquefaction and bulk distribution of natural gas in liquefied state. Each of the companies that participates in the consortium has a specific role: Petrobras supplies natural gas, White Martins liquefies the natural gas and GásLocal performs the trading and distribution of the liquefied gas. In November 2015, the SG opened a formal investigation in the same market to investigate an alleged discriminatory conduct supposedly practised by Petrobras. According to the complaint filed by Comgás, Petrobras would be promoting its own distributor to the detriment of Comgás. In December 2016, CADE’s Tribunal found that the Gemini Consortium engaged in abuse of dominance, imposing fines amounting to 21.4 million reais. The Tribunal also converted the preventive measure into a structural remedy, requiring its fulfilment.

ii Outlook

CADE’s enforcement priorities are clearly focused on fighting cartels, which means that cases involving abuse of dominance tend to represent a lower proportion of CADE’s enforcement activities. This approach, however, does not mean that cases involving abuse of dominance will not be initiated by CADE, although most of the cases examined in 2016 were initiated following complaints from third parties rather than as a result of CADE’s investigation efforts.

IV SECTORAL COMPETITION: MARKET INVESTIGATIONS AND REGULATED INDUSTRIES

i Significant cases

The SG analysed, throughout 2015 and 2016, a very controversial joint venture between TVSBT Canal 4 de São Paulo S/A, Rádio e Televisão Record S/A and TV Ômega Ltda, which are some of the major TV broadcasters active in the licensing channels for the pay-TV service providers sector.28 The companies joined forces to, among other things, invest in the creation of new content, TV shows and channels for pay-TV, as well as in the licensing of the digital signal of these broadcasters to pay-TV service providers. In May 2016, CADE’s Tribunal cleared the transaction conditioned to the adoption of certain remedies aimed at preventing anticompetitive conducts. Among the mechanisms proposed by the parties in the agreement presented to CADE, we find worth mentioning the parties’ obligation to invest in their joint venture and to provide subsidies to small and medium-sized pay-TV operators. Importantly, CADE also established an expiry date for the antitrust clearance of the joint venture – six years counting from the signing of the first contract with a major operator. After this period, the continuity of the joint venture will be subject to CADE’s clearance through a new merger filing.

Also in 2016, CADE’s SG opened an investigation into the zero-rating policies of four major Brazilian telecom operators.29 The investigation is the result of a complaint filed by the Federal Prosecutor’s Office at CADE, which argues that zero-rating policies entail market foreclosure, to the detriment of competition in the mobile apps segment, and ultimately raise prices for consumers. The SG is yet to issue its report with the findings of the investigation.

ii Trends, developments and strategies

Even though the Brazilian Competition Act does not limit CADE’s jurisdiction to enforce competition law in regulated sectors, certain aspects of this jurisdiction are still unclear and are being analysed by the Brazilian courts. Notably, the discussion regarding CADE’s jurisdiction to enforce competition law over banking mergers and conducts is by far the most complex, having reached the Brazilian Supreme Court (STF), which has yet to rule on the matter. CADE continues to understand that it has jurisdiction to enforce competition law in all sectors, including in the banking sector, although the Brazilian courts have so far sided with the argument sustained by the Brazilian Central Bank (BACEN), according to which BACEN should be solely responsible for enforcing competition law in the banking sector due to the sector’s peculiarities. However, since the STF has not rendered a definitive decision on the matter so far, CADE continues to review competition issues in the banking market.

iii Outlook

The increase in cooperation between CADE and various regulatory agencies and the various cases involving regulated markets that have been subject to CADE’s scrutiny suggest that CADE will continue to play an important role in the regulatory framework in Brazil. CADE is expected to continue to enforce competition law in regulated sectors, particularly where sectoral regulation fails to prevent and repress practices that may be harmful to competition.

V MERGER REVIEW

In 2016, 384 mergers were submitted to CADE’s review. CADE continued to clear merger filings under a pre-merger review system quickly and efficiently, leaving far behind the anxieties and doubts that had been raised when the current Brazilian Competition Act entered into force in 2012. Simple cases eligible for the fast-track procedure have been cleared in less than 20 days on average, while more complex cases have taken, on average, no more than 100 days to be decided.

i Significant cases
Remedies

CADE reviewed several high-profile merger cases in 2016, including transactions that were approved subject to remedies. In most of these cases, CADE and the parties were able to reach negotiated solutions on the necessary remedies for the approval of the transactions. This is also a positive effect of the merger control system enacted in 2012, which provided better incentives and a more suitable legal framework to encourage CADE and the parties to seek negotiated solutions in merger cases.

In 2016, CADE approved a major deal in the bank industry: Bradesco SA’s acquisition of HSBC Bank Brasil SA. The transaction was approved conditioned to the parties’ compliance with certain commitments, including the following behavioural remedies: (1) Bradesco’s website should give more visibility to the possibility that customers have of switching credit transactions (loans, etc.) to other banks at a low cost (portabilidade); and (2) Bradesco must implement a compliance programme.

A similar approach was adopted with regard to the MasterCard Brasil Soluções de Pagamento Ltda and Itaú Unibanco SA joint venture transaction.30 CADE and the parties entered into an agreement for the approval of the transaction pursuant to which the parties accepted to create an additional payment card brand, unrelated to Itaú Unibanco or Mastercard. Another restriction imposed by CADE was the creation of corporate governance rules, because the Tribunal found that the joint venture’s board of directors’ composition was to be amended in order to eliminate Itaú’s original right to veto certain decisions; CADE concluded that the decisions had to be taken in equal conditions between the parties. Finally, in an approach similar to the TV broadcasters joint venture case described above, CADE imposed a seven-year expiry period for antitrust clearance of the joint venture. This will allow CADE to re-evaluate the transaction in light of the future market structure.

Another noteworthy transaction that was cleared in 2016 subject to remedies was the acquisition, by Reckitt Benckiser, of sexual health brands Olla, Jontex and Lovetex, all owned by Hypermarcas SA.31 To remedy CADE’s concerns with the existence, post-transaction, of a company with significant portfolio power in the sexual health sector, Reckitt agreed to divest the KY brand to a third party capable of being and effective rival to Reckitt.

2016 has once again proved that not all complex transactions submitted to CADE are cleared following a smooth remedies negotiation. Indeed, because of the intense scrutiny the transaction suffered from antitrust agencies across the globe, including Brazil, Halliburton Company and Baker Hughes Incorporated gave up on their plans to merge. Deere & Company’s acquisition of Monsanto’s Precision Planting LLC faced a similar fate in February 2017.

Gun jumping

CADE continues to take gun-jumping violations very seriously. In 2016, CADE imposed fines totalling 1.5 million reais on the parties to a transaction involving the company Blue Cycle Distribuidora SA, which distributes, on an exclusive basis, Shimano Inc’s products in Brazil (Shimano Japanese bicycles factory).32 For the first time ever, CADE also applied the nullity penalty provided by law in gun-jumping cases, suspending the effects of the agreement between Blue Cycle and Shimano. The measure aims at restoring the distribution model in place prior to the transaction during the period in which it is being reviewed by CADE.

Furthermore, in January 2016, CADE determined that Cisco Systems Inc and Technicolor SA pay a fine of 30 million reais for the practice of gun jumping. It is the highest fine imposed by CADE for a gun-jumping violation recorded to date. In the merger, notified in Brazil, Canada, Colombia, the Netherlands, Ukraine and the United States, the parties closed a global transaction for the takeover of a wholly-owned subsidiary of Cisco, based in the US, by Technicolor SA, based in France. The parties claimed that the carve-out agreement signed between them would keep the competitive conditions between the parties in Brazil unchanged until the transaction was cleared by CADE. The Brazilian authority considered, however, that the provisions set forth by the carve-out provisions were not sufficient to exclude or mitigate the practice of gun jumping, citing the reluctance of foreign antitrust authorities in using carve-out agreements in the control of international mergers. According to CADE, the effectiveness of carve-out agreements is highly questionable when it comes to avoiding the exchange of sensitive information between competitors. Furthermore, CADE considered that the parties involved in the transaction took the risk of the transaction being consummated before obtaining CADE’s authorisation and decided to proceed regardless.33

Re-examination of transactions by CADE’s Administrative Tribunal

In April 2014, CADE’s Attorney General (ProCADE) and the SG advised CADE’s Tribunal to reopen the merger filing involving the constitution of a consortium between White Martins Gases Industriais Ltda, Petróleo Brasileiro SA, and Petrobrás Gás SA in the gas distribution market.34 The companies challenged CADE’s decision that imposed restrictions for the approval of the transaction before the courts of law and obtained an injunction exempting them from complying with certain remedies. As a result, the authorities considered that the injunction would allow CADE to reopen the case and review whether other remedies should be imposed. In 2016, CADE reapproved the transaction subject to structural remedies to mitigate CADE’s competition concerns, such as the commitment to follow the general principle of non-discrimination, which should govern the entire Consortium Gemini, under an independent audit supervision.

ii Trends, developments and strategies

In 2016, CADE enacted new regulations designed to improve its merger control systems on the following matters:

a definition of the types of associative agreements that require a merger notification, excluding vertical agreements from the definition of transactions that may require CADE’s clearance as associative agreements; and

b establishment of a 30-day deadline, counting from the date of filing, for CADE to clear fast-track mergers.

Furthermore, in July 2016, CADE launched the new Horizontal Merger Guidelines, used by CADE in its analysis of all horizontal merger cases. This is the second version of the guidelines to date, and the first to be the result of over three years of CADE’s decisional practice under the new Brazilian Competition Act.

iii Outlook

CADE has proved to be able to efficiently examine simple transactions under a pre-merger review system, overcoming known difficulties of limited staff and lack of experience of the new model. Nevertheless, there are aspects of interpretation and implementation of the new Competition Act regarding merger control that are still unclear. The improvement of the Brazilian merger control system continues to be on CADE’s agenda, as demonstrated by the new regulations and procedural matters enacted in 2016.

VI CONCLUSIONS

i Pending cases and legislation

As indicated, CADE has submitted two draft guidelines to public consultation regarding settlement agreement negotiations in cartel cases and leniency agreements negotiations with CADE; and enacted procedural matters regarding investigations into gun-jumping cases. These potential changes may have an impact on the way CADE carries out settlement agreements especially in cartel cases. Additionally, CADE published Compliance Guidelines suggesting internal rules and protocols that can effectively assist companies in avoiding antitrust violations.

In the area of anti-cartel enforcement, CADE’s Administrative Tribunal is expected to decide various cases that were reviewed by the SG in 2016 and that had been under investigation for a few years. The decisions to be rendered in these cases and the approach the SG may take with respect to new investigations are issues that deserve attention from the antitrust and business communities, as they may frame the enforcement environment for the next few years.

ii Analysis

Brazil is a dynamic jurisdiction for competition law, as the developments in recent years have shown. The new competition law framework, which has been in place for almost five years, has been reasonably successful so far. As it develops, however, it is natural that new challenges will appear. It is expected, nevertheless, that CADE will be able to deal with these challenges adequately, given the difficulties that it has already overcome recently and considering the overall evolution of competition law and policy in Brazil.


Footnotes

1 Mariana Villela and Leonardo Maniglia Duarte are partners and João Marcelo Lima is an associate at Veirano Advogados.

2 Broadly, the SG is in charge of investigating anticompetitive conduct and approving merger cases that do not raise competition concerns; the Administrative Tribunal is responsible for rendering decisions on all investigations of anticompetitive conduct and for deciding merger cases that may present competition concerns; and the Department of Economic Studies is responsible for issuing non-binding economic opinions and for carrying out economic studies in general.

3 See OECD, ‘Competition Law and Policy in Brazil: a Peer Review, 2010’, available at www.oecd.org/daf/competition/45154362.pdf.

4 See www.cade.gov.br/noticias/cade-apresenta-balanco-de-suas-atividades-em-2016/apresentacao-
balanco-2016.pdf.

5 See www.cade.gov.br/noticias/em-davos-cade-e-reconhecido-como-uma-das-agencias-antitruste-mais-
eficientes-do-mundo.

7 For additional information in this regard, please see the presentation of CADE’s annual balance sheet for 2016, available in Portuguese only at: www.cade.gov.br/noticias/cade-apresenta-balanco-de-suas-atividades-
em-2016.

8 CADE, Administrative Proceeding No. 08012.005255/2010-11.

9 CADE, Administrative Proceedings Nos. 08012.000774/2011-74 and 08700.009161/2014-97.

10 CADE, Administrative Proceeding No. 08012.000773/2011-20.

11 CADE, Administrative Proceeding No. 08012.000820/2009-11.

12 CADE, Administrative Proceeding No. 08012.001029/2007-66.

13 CADE, Administrative Proceeding No. 08012.001395/2011-00.

14 See www.cade.gov.br/Default.aspx?f145d523f228fc06103d0e253012 for more information.

15 CADE, Administrative Inquiry No. 08700.007776/2016-41.

17 CADE, Administrative Inquiry No. 08700.007777/2016-95.

18 See www.cade.gov.br/noticias/cade-mpf-go-e-policia-federal-realizam-operacao-para-investigar-suposto-
cartel-em-licitacoes-de-ferrovias for more information.

19 Settlement by ABB Ltda, which acknowledged its participation in an international cartel that supposedly affected the markets for manufacturing and installation of underground high-voltage cables and submarine high and low-voltage cables. See CADE, Administrative Proceedings Nos. 08012.003970/2010-10 and 08700.008576/2012-81.

20 See Settlements Nos. 08700.001429/2015-23; 08700.001449/2015-02; 08700.001808/2016-02; 08700.002026/2016-82; 08700.002108/2016-27; 08700.002125/2016-64; 08700.002492/2015-87; 08700.003050/2016-39; 08700.003082/2016-34; 08700.003266/2015-13; 08700.003268/2015-11; 08700.003364/2016-31; 08700.003432/2016-62; 08700.003672/2016-67; 08700.003754/2015-21; 08700.003821/2015-15; 08700.004176/2015-40; 08700.004617/2016-94; 08700.007160/2015-99; 08700.007420/2015-26; 08700.007742/2015-75; 08700.008068/2015-46; 08700.008219/2015-66; 08700.009213/2015-14; 08700.009944/2015-51; 08700.010029/2015-17; 08700.010925/2015-78; 08700.010997/2015-15; 08700.011024/2015-01; 08700.011036/2015-28; 08700.011190/2015-08; 08700.001728/2016-49; 08700.001730/2016-18; 08700.001908/2011-16; 08700.005593/2016-91; 08700.005552/2016-02; 08700.008910/2015-40; 08700.011930/2015-06; 08700.000843/2016-04; 08700.009978/2015-46; 08700.007351/2016-31; 08700.007360/2016-22; 08700.007362/2016-11; 08700.007364/2016-19; 08700.007366/2016-08; 08700.007370/2016-68; 08700.007368/2016-99; 08700.003897/2016-13; 08700.004554/2016-76; 08700.006723/2016-11; 08700.006760/2016-11; 08700.006946/2015-99; 08700.007064/2015-41; 08700.007074/2015-86; 08700.007418/2015-57; 08700.007789/2015-39; 08700.003764/2015-66; 08700.003945/2016-73; 08700.004016/2016-81; 08700.004433/2016-24; 08700.006757/2016-05. 08700.001444/2015-­71; 08700.001450/2015­-29; 08700.001451/2015­-73; 08700.001448/2015­-50; 08700.007820/2015­-31; 08700.002704/2015­-26; 08700.003727/2015­-58; 08700.006559/2015­-52; 08700.007343/2015­-12; 08700.004176/2015-40; 08700.008219/2015-66.

21 The MOU was executed in mid-March 2016. See www.cade.gov.br/noticias/cade-e-mpf-sp-assinam-
memorando-de-entendimentos-para-fortalecer-atuacao-no-combate-a-carteis.

22 The Resolution was enacted in September 2016. See www.cade.gov.br/noticias/assinada-nova-resolucao-
para-normatizar-atuacao-do-mpf-junto-ao-cade.

23 This resolution lists several lines of business for the purpose of applying Article 37 of the Brazilian Competition Act, which establishes that companies held liable for competition offences are, among other things, subject to fines ranging from 0.1 to 20 per cent of the gross revenues achieved by the defendant’s group of companies in the line of business affected by the conduct.

24 See http://en.cade.gov.br/press-releases/cade-submits-for-public-consultation-resolution-on-procedures-
related-to-the-access-to-documents-from-the-antitrust-investigations.

25 CADE, Settlement No. 08700.008345/2016-00.

26 CADE, Administrative Proceeding No. 08012.001594/2011-18.

27 CADE, Administrative Proceeding No. 08012.011881/2007-41. See www.cade.gov.br/Default.aspx?
78cb5aaf41d62df603300350e16a for more information.

28 CADE, Concentration Act No. 08700.006723/2015-21.

29 CADE, Administrative Inquiry No. 08700.004314/2016-71.

30 CADE, Concentration Act No. 08700.009363/2015-10.

31 CADE, Concentration Act No. 08700.003462/2016-79.

33 CADE, Concentration Act No. 08700.011836/2015-49.

34 CADE, Concentration Act No. 08012.001015/2004-08.