I OVERVIEW

Brazil has stood out in recent years as one of the most active jurisdictions in competition enforcement, and 2017 confirmed this trend. After five years of enforcement under the new Brazilian Competition Act,2 which entered into force in May 2012 and introduced a new system that concentrated the roles of three competition agencies into one, the new pre-merger review system, and also the revised rules to create better incentives and provide more legal certainty to leniency and settlement agreements, have both enabled the Administrative Council for Economic Defence (CADE) to function at a higher level of efficiency and improve the quality in its investigations and decisions.

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, 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.3

The current Competition Act also introduced a pre-merger review system, replacing the previous post-merger review system.4 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 cases eligible for the fast-track procedure of 14.6 days. Transactions reviewed under the regular procedure are cleared within an average of 89.7 days.5

According to CADE’s estimates, 379 concentration acts were submitted for approval in 2017, of which three cases were rejected and five cases were approved with restrictions. Thirteen cases were challenged by the SG and forwarded to the Administrative Tribunal for a final decision. The SG declined to review a total of nine transactions, concluding that they did not require a merger filing because either they did not meet the legal turnover thresholds or they did not qualify as a concentration act as per the wording of the Brazilian Competition Act.6

There has been an increase in the number of mergers reviewed by CADE’s Administrative Tribunal, as well as in the number of transactions subjected to substantial scrutiny and opposition, and even effectively blocked by the authority. In 2017, CADE blocked high-profile mergers such as the Estácio/Kroton tie-up and the Ipiranga/Alesat merger, and imposed heavy conditions to approve other notable mergers such as AT&T/Time Warner. This may be interpreted as an indication that CADE is raising the bar of its approach to merger control in complex transactions.

On the investigations front, 2017 was not as busy for the Administrative Tribunal as 2016. It tried 13 administrative proceedings, convicting the defendants in nine of them. However, from January to June 2017, CADE executed 20 leniency agreements, against an annual average of 12.8 agreements from 2012 to 2016. These agreements originated several new investigations, especially related to alleged cartels in public bids.7

CADE was very active in terms of institutional progress and cooperation with foreign authorities throughout 2017. It adopted measures to help increase the transparency and quality of its decisions, publishing new internal regulations,8 issuing two manuals9 and updating two of its official guidelines.10 CADE also took steps to improve international cooperation with other enforcers worldwide, joining the COMPAL programme,11 requesting accession to the OECD’s Competition Committee,12 signing cooperation agreements with other BRICS countries13 and becoming the chair of the ICN cartels working group (until 2020).14

CADE’s performance in the past year was recognised by Global Competition Review (GCR), which rated the authority among the top 10 best antitrust authorities in the world.15 Furthermore, during the 2017 ABA Antitrust Spring Meeting, the Brazilian antitrust authority received two awards: the best antitrust authority in the Americas by GCR and the ‘Most Innovative Soft Law’ related to concerted practices by Concurrences.16 Once again, CADE is a finalist for the Antitrust Writing Awards – promoted by Concurrences and George Washington University Law School Competition Law Centre – in the ‘Best Soft Law’ category for its Search and Seizure Operations Manual.17

In mid-2017, a new General Superintendent, Mr Alexandre Cordeiro, was appointed by the President to replace Mr Eduardo Frade. Under his command, in 2018, the SG is expected to reinforce the relevance of cartel prosecution by continuing to foster its leniency programme and other investigative 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. In addition, according to public speeches of the new General Superintendent, unilateral conduct investigations are expected to have a more prominent position in the following years. On the merger control front, the amount of merger challenges – and their relevance to the result of merger cases – is expected to increase. Finally, there continues to be some expectation that CADE will take steps to encourage private damage claims for antitrust offences.

II CARTELS

Since 2012, the SG, the CADE unit responsible for investigating anticompetitive conduct, has been trying to clear the backlog of cartel cases. From January to June 2017, out of the five cases forwarded to CADE’s Administrative Tribunal for judgment, the SG concluded that, in four of them, the investigations should be dismissed and the defendants should not be convicted. At the same time, the fight against cartels remains a top priority for CADE. The SG also executed at least 20 leniency agreements from January to June 2017, in addition to others that are currently under negotiation. Further, the SG 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.18

i Significant cases

The SG has initiated investigations concerning several public bids, and CADE executed some settlement agreements with companies involved in public bids or contracts, or both.

In January 2017, UTC Engenharia S/A and Andrade Gutierrez Engenharia S/A executed settlement agreements and paid pecuniary contributions totalling 195 million reais. The agreements concerned two administrative proceedings related to Operation Car Wash: a cartel in Petrobras’ public bids and another in Eletronuclear’s public bids. These proceedings were initiated after leniency agreements were executed with other cartel participants in 2015. Andrade Gutierrez became the third company to execute an agreement in the Petrobras investigation and the first to do so in the context of the Eletronuclear investigation, while UTC is the second company to do so in both investigations.19

In July, the SG launched an investigation on bid rigging related to the construction, maintenance and recovery of Arco Metropolitano, one of Rio de Janeiro’s most important highways. The investigation originated from an agreement executed with OAS S/A, which supposedly was one of eight main participants in the conduct. According to the SG, there were also 15 secondary participants in the conduct.20

In August, the SG initiated a proceeding to investigate alleged bid rigging to install cafeterias in seven Brazilian airports. The investigations were launched after a complaint was filed by Infraero, the government-owned company that manages the airports. According to Infraero, there was strong evidence that the investigated parties shared sensitive information and communicated among themselves before the public bid. The evidentiary documents brought to CADE’s attention included several documents with the same spelling mistake and layout from different sources of several of the involved competitors.21

In December, three other proceedings were initiated to investigate cartels in public bids. The proceedings are focused on the construction of the Mario Covas ring road highway22 in São Paulo, the construction of São Paulo’s road system programme,23 and the construction of railways in seven states and in the Federal District.24 These investigations, related to Operation Car Wash, originated from leniency agreements executed with Odebrecht and Camargo Correia.

Moving to the topic of cartels unrelated to public bids, CADE negotiated and executed several settlement agreements in the past year. In April, Cascol Combustíveis para Veículos Ltda executed an agreement regarding an investigation into a cartel in the fuel resale market in the Federal District. Cascol agreed to:

  • a pay 90 million reais;
  • b acknowledge its participation in the wrongdoing,;
  • c fully cooperate with the authority until the end of all investigations;
  • d divest certain gas stations currently under Cascol’s management in Brasília (in the Federal District); and
  • e implement an effective compliance programme.

The other parties are still under investigation.25

In November, CADE executed two agreements related to a cartel in the market for the distribution of liquefied petroleum gas. The settling defendants agreed to pay settling sums amounting to 97 million reais. These are the third and fourth agreements executed in this proceeding. The investigations started after CADE received information from a criminal investigation.26

Although CADE’s Administrative Tribunal concluded fewer investigations in 2017 than in previous years, some are of particular note. In June, the Tribunal convicted four people and a commercial association for bid rigging in public works in the state of Paraná. The other 15 defendants were acquitted by the Tribunal. Interestingly, CADE’s SG recommended the dismissal of the case against all the defendants, but the Federal Prosecution Office and CADE’s Chief Attorney recommended the conviction.27

In August, the Tribunal convicted four companies for bid rigging in the market for building maintenance services, where the companies cartelised both private and public bids. The wrongdoing allegedly lasted from at least 2000 to 2006, when a dawn raid took place. The fines levied on the four companies totalled 11.9 million reais, and the cartel’s leader was prohibited from participating in public bids for five years. The proceeding was initiated after a leniency agreement signed with Emerson Sistemas de Energia Ltda in 2006. The other four companies executed settlement agreements with CADE during the investigations.28

Finally, CADE managed to reach resolution in several investigations through the execution of 70 settlement agreements in 2017, which collectively amounted to 845.8 million reais in financial compensation being paid by the defendants.29

The SG carried out at least one high-profile dawn raid in 2017 as a part of an investigation of an alleged bid-rigging cartel in São Paulo related to sanitation projects.30

ii Trends, developments and strategies

On 6 March 2013, CADE enacted Regulation No. 5/2013, which modified the rules regarding settlements. The purpose of this Regulation was to increase the 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 settling sums to be paid by 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 its enactment, over 200 settlements have been executed under the new Regulation.31 In 2017, the Administrative Tribunal and the SG negotiated a total of 75 settlement agreements in cases involving several markets; four settlements were rejected by the Tribunal, and one became moot.32 The resolution of cartel investigations through settlements proved to be a very effective tool to end investigations that otherwise could take years to be decided, releasing a significant amount of public resources that could be redirected to other investigations 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 entered into the following agreements in 2017:

  1. cooperation agreements signed with 11 state prosecution offices, with the purpose of assisting in criminal investigations and prosecutions;33
  2.  cooperation agreements with the Russian Federal Antimonopoly Service and with the Chinese Ministry of Commerce, with the purposes of exchanging information regarding antitrust laws, and of sharing practices and experiences;34 and
  3. a technical cooperation agreement with the Brazilian Institute for Applied Economic Research (Ipea), with the purpose of conducting research on merger reviews, unilateral conduct and the detection of cartels in public bids.35
iii Outlook

An examination of cases initiated and concluded in recent years suggests that the investigation of cartels continues to be an enforcement priority for CADE. In 2017, CADE executed an all-time high number of leniency agreements and settlement agreements, many of which were related to Operation Car Wash. Since many proceedings have originated from these agreements, it is also expected that the SG will soon send more cases to CADE’s Tribunal.

In 2017, CADE devoted a substantial amount of resources to the investigations and leniency agreements related to Operation Car Wash, and it is expected that they will continue to absorb a significant part of CADE’s enforcement capabilities throughout 2018. This may have the side effects of delaying other investigations and of preventing CADE from pursuing new ones. This scenario highlights the importance of boosting CADE’s human and financial resources as soon as possible, as CADE has been historically understaffed. In spite of the agency’s strong commitment to efficient enforcement and continuing developments in recent years, there is a risk that certain antitrust violations may go undetected and unpunished to the detriment of free competition and of Brazilian consumers due to a lack of sufficient personnel and resources.

III ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE

i Significant cases

In 2017, CADE’s new General Superintendent affirmed in public speeches that the investigation of unilateral anticompetitive behaviour will be a priority in the following years. Below we discuss some relevant 2017 developments regarding the few cases involving abuse of dominance.

In February 2017, CADE’s Tribunal approved a settlement agreement with Instituto Aço Brasil36 to end a formal administrative proceeding37 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 a contribution amount of 271,300 reais, and Instituto Aço Brasil was not required to acknowledge any wrongdoing.

In November, the Tribunal postponed its decision on an important unilateral anticompetitive conduct investigation in the national market of auto-parts reposition. The SG recommended the conviction of the car assemblers Volkswagen, Fiat and Ford. The SG argued that the enforcement of property rights regarding their designs of automotive supply parts to independent manufacturers of automotive parts, aimed at prohibiting them from selling their own auto parts on the replacement market, would constitute abuse of the industrial property law with anticompetitive purposes. The Reporting Commissioner has already handed down its ruling in this case, fining the defendants on 4.2 million reais. CADE’s Tribunal is expected to convey its final decision at some stage during the course of 2018.38

Another important case expected to be decided in 2018 is related to the state-controlled postal company Correios. The SG has recommended condemning Correios for unjustified and continuous judicial litigation (sham litigation) and anticompetitive discrimination aimed at extending its legal monopoly in mail delivery.39

The SG also dismissed a case related to zero-rating policies of four major Brazilian telecom operators in August 2017. This case is explained in further detail in Section IV.

ii Trends, developments and strategies

As previously mentioned, the new General Superintendent has stated in public speeches that, after focusing on cartels and mergers for so long, it is now time for CADE to focus more attention on unilateral conduct, which can be very harmful to competition.40

iii Outlook

CADE’s enforcement priorities were clearly focused on fighting cartels, meaning that cases involving unilateral conduct represented a lower proportion of CADE’s enforcement activities. Public speeches by competition authorities indicate a possible shift on this policy and more enforcement in this area. There was no noticeable change in the level of enforcement against abuse of dominance, and there is a significant backlog of old cases awaiting resolution. In any case, CADE is promising to be more active in pursuing unilateral conduct investigations, and it will be important to track closely how its efforts to accomplish this will unfold in 2018.

IV SECTORAL COMPETITION: MARKET INVESTIGATIONS AND REGULATED INDUSTRIES

i Significant cases

In 2016, the SG opened an investigation into the zero-rating policies of four major Brazilian telecom operators.41 The investigation was the result of a complaint filed by the Federal Prosecutor’s Office at CADE, which argued that zero-rating policies entail market foreclosure to the detriment of competition in the mobile apps segment, and ultimately raise prices for consumers. CADE dismissed the case in August 2017, stating that there was no evidence that the zero-rating policy distorts competition or raises entry barriers in the market of software for mobile phones. The SG also stated that there are similar legitimate policies in the telecom industry (e.g., toll-free telephone numbers and the receiving party pays policy), and in the broadcasting industry (with free channels paid for only by advertisers), and highlighted that the zero-rating policy originated from competition in the market for mobile communication. It is also worth noting that CADE affirmed that it has no jurisdiction to investigate and decide on possible net-neutrality investigations, and that it limited its assessment to whether zero-rating practices could limit competition.

Again in 2017, the SG asked CADE’s Department of Economic Studies (DEE) to issue a report discussing the structure and competitive dynamics of the individual passenger transport sector in order to inform policy decisions. In November 2017, DEE published a preliminary report focusing on the expansion of the sharing economy in the individual passenger transportation market and on the regulatory implications of this.42

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 its 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 conduct 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 industry. In 2017, CADE and BACEN established a working group to develop studies about competition defence in the Brazilian financial system. The group will also research new cooperation strategies between the agencies, and analyse the methods and the limits of the competencies of each authority.43

iii Outlook

The increase in cooperation between CADE and various regulatory agencies, and the cases involving regulated markets that have been subject to CADE’s scrutiny, suggest that CADE will continue to play an important role in shaping the regulatory framework of several industries 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 2017, 362 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.44

i Significant cases
Blocks

While CADE did not block a single merger case in 2016, CADE blocked three mergers in 2017.

In June 2017, the Tribunal disapproved the acquisition of Estácio Participações S/A by Kroton Educacional S/A, the two largest Brazilian private higher education institutions. The Reporting Commissioner argued that, given the lack of sufficient rivalry, the transaction could harm the market of on-site education in eight cities. Therefore, she voted for the approval subject to structural and behavioural remedies that would mitigate the concerns raised. However, the other commissioners argued that the remedies proposed by the parties and by the Reporting Commissioner were not sufficient to mitigate the anticompetitive risks of the transaction, and voted for the rejection of the merger. Regarding future submissions, CADE’s President has highlighted that ‘The parties involved in a transaction should be those to indicate the efficiencies, remedies or effective solutions to the concerns identified by CADE’s General Superintendence or by CADE’s Tribunal’.45

In August 2017, a high-profile merger on the fuel distribution market was unanimously blocked. The Tribunal argued that Ipiranga Produtos de Petróleo S/A’s acquisition of Alesat Combustíveis S/A would eliminate a maverick firm, and the main supplier to ‘white flag’ fuel stations in many markets, compelling these stations to abandon their ‘white flag’ business strategy and to negotiate with one of the three biggest national distributors. The parties presented a merger control agreement (ACC) to address the concerns raised by the commissioners, but the Tribunal’s majority rejected the ACC, arguing it was not enough.46

In October 2017, the Tribunal unanimously decided to reject JBJ Agropecuária Ltda’s acquisition of Mataboi Participações Ltda. The transaction was especially critical because JBJ’s owner is a brother of JBS controllers – JBS is the leading company on the national market of the slaughtering and trading of fresh meat – and their father was appointed to chair JBS in the absence of his sons. Therefore, although there was no formal corporate relationship, the Tribunal considered that the transaction would increase JBS’s market power in the affected markets. In addition, according to the Reporting Commission, these markets were already characterised by a low level of rivalry and high entry barriers.47

Remedies

CADE reviewed several high-profile merger cases in 2017, including transactions that were approved subject to sophisticated remedies packages (including structural and behavioural commitments). This is a positive effect of the merger control system enacted in 2012, which provides better incentives and a more suitable legal framework to encourage CADE and parties to seek negotiated solutions in merger cases.

In 2017, CADE approved another deal in the bank industry: Itaú-Unibanco S/A’s acquisition of Citibank S/A’s retail business. The transaction was approved conditioned on the parties’ compliance with certain behavioural remedies in five main areas:

  • a communication and transparency;
  • b training;
  • c quality indicators;
  • d compliance; and
  • e a restriction on the acquisition of financial institutions and management consortia.

The remedies were inspired by those negotiated in the scope of 2016’s HSBC/Bradesco merger, and included the following commitments:

  • a Itaú should give more visibility to the possibility customers have of switching their salary and credit (loans, etc.) to other banks at a low cost;
  • b Itaú must improve its antitrust corporate policy; and
  • c Itaú cannot acquire financial institutions or management consortia for 30 months.48

CADE also approved, with restrictions, a merger in the stock and over-the-counter markets: BM&FBovespa S/A and Cetip S/A merged to create B3. CADE was especially concerned with access to the Central Depositary Services, an infrastructure that can be regarded as being somewhat analogous to a natural monopoly. Therefore, to gain approval for the merger, the parties agreed to guarantee the access to this infrastructure to third parties on a non-discriminatory basis.49

Another noteworthy transaction that was cleared in 2017 subject to remedies was the acquisition of Time Warner by AT&T. In Brazil, AT&T owns pay-TV services operator Sky Brasil, and TimeWarner licenses channels to pay-TV operators. To address CADE’s concerns, which were mainly related to the exchange of sensitive information and the negotiation of more favourable conditions that could potentially harm competitors in both markets, the parties agreed to several conditions, including:

  1. maintaining the current status of the companies as autonomous agents;
  2. not exchanging sensitive competition information;
  3. licensing Time Warner’s programming channels to non-affiliated packers and providers of pay-TV under non-discriminatory conditions; and
  4. not refusing broadcasting to providers of programming channels not affiliated to AT&T.50

Also of particular note is the vertical merger between Dow Chemical and DuPont de Nemours. As this was a multi-jurisdictional merger, several remedies were coordinated with the jurisdictions involved. By way of a merger control agreement, the applicants agreed to substantial structural remedies. The agreement also set minimum requirements for potential buyers.51

In February 2018, CADE’s Tribunal also approved two other mergers subject to both behavioural and structural remedies: the acquisition of Votorantim Siderurgia by ArcellorMittal52 and the acquisition of Monsanto by Bayer.53

Preliminary authorisation to close

On 13 December 2017, the Tribunal granted the parties to a transaction a preliminary authorisation to close it before the final antitrust clearance on merger case No. 08700.007756/2017-51. The transaction involved Excelence BV’s acquisition of a 60 per cent stake in Rio de Janeiro Aeroportos (Rio Aeroportos) held by Odebrecht. Rio Aeroportos controls the concessionaire of Aeroporto Internacional Carlos Jobim (Galeão).

The parties requested authorisation to anticipate the closing of the transaction, arguing that the deadline stipulated by ANAC (the Brazilian aviation agency) for payment of the first instalment referring to the Galeão concession would expire on 20 December 2017: if the transaction was not consummated before this date, the Galeão concessionaire would not be able to make payments, which could lead to the interruption of the airport’s activities. CADE’s Tribunal unanimously decided that the requirements for the granting of an authorisation to close were met in this case, given that there was no risk that granting the injunction would irrevocably harm competition; the injunction’s effects were reversible; and there was an imminent risk that the Galeão concessionaire would incur substantial and irreversible financial losses. Members of the Tribunal were clear in stating that injunctions to authorise the anticipation of closing are entirely exceptional.54

ii Trends, developments and strategies

The new trends in merger review in 2017 are as follows:

  1. as CADE’s merger review grows more sophisticated, the amount of merger challenges – and their relevance to the result of merger cases – is on the rise;
  2. CADE has toughened its assessments regarding vertical integrations. Transactions that, at another time, would be easily cleared under the fast-track procedure are now strictly scrutinised by CADE; and
  3. CADE has changed its approach to blocking mergers. In 2017, the Tribunal blocked three mergers (against an average of around 1.5 from 2012 to 2016), and the SG recommended the disapproval of two other mergers. In January 2018, the SG recommended the rejection of another merger.55

Furthermore, as part of CADE’s strategy to be more transparent, the authority launched SG’s Internal Manual for Mergers reviewed under the Regular Procedure.56

iii Outlook

CADE has proved capable of efficiently examining simple transactions under a pre-merger review system, overcoming the difficulties of a limited staff and a lack of experience of the new model. Nevertheless, there are aspects of the 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 2017.

VI CONCLUSIONS

i Pending cases and legislation

In the area of anti-cartel enforcement, the Administrative Tribunal is expected to decide various cases that were reviewed by the SG in 2017 and that have been under investigation for a few years. The decisions rendered in these cases and the approach the SG may take with respect to new investigations are issues that deserve the attention of the antitrust and business communities, as they may frame the enforcement environment for the next few years.

On the merger front, the Tribunal is also expected to decide high-profile mergers, including the acquisition of Liquigás by Ultragaz57 and the acquisition of XP Investimentos’ stake by Itaú.58 The SG has recommended blocking the Liquigás/Ultragaz deal and approving the Itaú/XP merger subject to conditions.

ii Analysis

Developments in recent years have shown Brazil to be a dynamic jurisdiction for competition law. The new competition law framework, which has been in place for almost six years, has been reasonably successful so far. However, it is natural that new challenges will appear as it develops. One significant concern is the risk that CADE may be over-influenced by and pressured from a political perspective, given that several cartel investigations that derived from the Car Wash Operation affect several Brazilian high-level authorities and politicians. Therefore, the risk of political appointments to key positions within CADE may increase, and this deserves attention.

In any case, CADE has already developed solid institutional foundations inspired by the best international practices in competition law enforcement, and has continuously improved. Therefore, CADE is well positioned to successfully deal with all these challenges adequately, given the difficulties that it has already overcome and considering the overall evolution of competition law and policy in Brazil. CADE has also been able to convince Congress to increase its annual budget, which is expected to translate in more resources to increase competition enforcement in the country.

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

2 The new Brazilian Competition Act (Law No. 12,529/2011).

3 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.

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

5 Based on data for the first six months of 2017. See http://www.cade.gov.br/servicos/imprensa/balancos-e-apresentacoes/balanco-mandato-sg-2014-2017.pdf/view.

7 These figures consider the regular leniency agreements, the leniency plus agreements and amendments to these agreements. See http://www.cade.gov.br/imagens-banner-rotativo/cade-em-numeros/view

8 CADE’s new by-laws have two main innovations: a detailed description of CADE’s current administrative structure and the codification of some of CADE’s positions about procedural matters. Available at http://www.cade.gov.br/assuntos/normas-e-legislacao/regimento-interno/novo-regimento-interno-do-conselho-
adminstrativo-de-defesa-economica-cade-07_nov-2017.

9 The Search and Seizure Operations Manual and the SG’s Internal Manual for Mergers reviewed under the Regular Procedure. The Portuguese versions of the manuals are available at http://www.cade.gov.br/acesso-a-informacao/publicacoes-institucionais/guias-e-manuais-administrativos-e-procedimentais.

10 The Guidelines for Cease and Desist Agreements for Cartel and the Guidelines on Cade’s Antitrust Leniency Program. Both guidelines have English versions. However, CADE did not update the English versions in 2017. The ‘Guidelines on Cease and Desist Agreements for Cartel’ are available at http://www.cade.gov.br/acesso-a-informacao/publicacoes-institucionais/guias_do_Cade/guidelines_tcc-1.pdf and the Guidelines for Cade’s Antitrust Leniency Program are available at http://www.cade.gov.br/acesso-a-informacao/publicacoes-institucionais/guias_do_Cade/guidelines-cades-antitrust-leniency-program-1.pdf.

11 See http://en.cade.gov.br/press-releases/brazil-becomes-a-member-of-compal-program.

12 See http://en.cade.gov.br/press-releases/brazil-presents-request-of-accession-to-the-oecd2019s-competition-
committee.

13 See http://en.cade.gov.br/press-releases/brics-improves-cooperation-on-competition.

14 See http://en.cade.gov.br/press-releases/cade-is-one-of-the-co-chairs-of-the-icn-cartels-working-group.

15 See https://globalcompetitionreview.com/edition/1001035/rating-enforcement-2017.

16 See http://en.cade.gov.br/press-releases/cade-is-awarded-the-best-antitrust-agency-in-the-americas.

17 See http://www.cade.gov.br/noticias/cade-e-finalista-em-premiacao-internacional-1.

18 For additional information in this regard, please see the presentation of SG’s balance sheet for mid-2014 to mid-2017, available in Portuguese only at http://www.cade.gov.br/servicos/imprensa/balancos-e-apresentacoes/balanco-mandato-sg-2014-2017.pdf/view.

19 See http://en.cade.gov.br/press-releases/cade-signs-agreements-with-andrade-gutierrez-and-utc-concerning-
cartel-investigations-in-petrobras-and-eletronuclear-public-bids.

20 CADE, Administrative Proceeding No. 08700.004468/2017-44.

21 CADE, Administrative Proceeding No. 08700.007278/2015-17. See http://en.cade.gov.br/press-releases/cade2019s-general-superintendence-investigates-bid-rigging-in-seven-airports-cafeterias2019-bids.

22 CADE, Administrative Proceeding No. 08700.003067/2009-67.

23 CADE, Administrative Proceeding No. 08700.003240/2017-37.

24 CADE, Administrative Proceeding No. 08700.003241/2017-81. See http://en.cade.gov.br/cade-
investigates-bid-rigging-in-public-bids-subways-and-monorail-infrastructure-in-seven-states-and-in-the-
federal-district.

25 CADE, Administrative Proceeding No. 08012.008859/2009-86. See http://en.cade.gov.br/press-releases/cade-signs-agreement-in-cartel-investigation-regarding-the-market-of-fuel-resale-in-the-federal-district.

26 CADE, Administrative Proceeding No. 08700.003067/2009-67.

27 CADE, Administrative Proceeding No. 08012.009382/2010-90.

28 CADE, Administrative Proceeding No. 08012.006130/2006-22. See http://en.cade.gov.br/press-releases/cade-condemns-companies-for-cartel-in-the-building-maintenance-services-market

30 See http://en.cade.gov.br/press-releases/cade-and-the-federal-police-carry-out-dawn-raid-in-basic-sanitation-public-works-cartel-investigation

31 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.

33 See http://www.cade.gov.br/noticias/cade-firma-acordo-de-cooperacao-tecnica-com-ministerio-publico-
de-santa-catarina.

34 See http://en.cade.gov.br/press-releases/brics-improves-cooperation-on-competition.

35 See http://www.cade.gov.br/noticias/cade-firma-parceria-com-o-ipea-para-o-desenvolvimento-de-pesquisas.

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

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

38 CADE, Administrative Proceeding No. 08700.009588/2013-04. See http://en.cade.gov.br/press-releases/cade2019s-general-superintendence-sees-anticompetitive-conduct-of-car-assemblers-that-prevent-auto-
parts-replacement-by-independent-manufacturers.

39 CADE, Administrative Proceeding No. 08012.002673/2007-51. See http://en.cade.gov.br/press-releases/cade2019s-general-superintendence-recommends-the-condemnation-of-the-brazilian-post.

40 See https://globalcompetitionreview.com/article/1149505/cade-to-focus-on-unilateral-conduct.

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

42 See http://en.cade.gov.br/press-releases/dee-elaborates-a-preliminary-technical-report-about-uber2019s-impact.

43 See http://en.cade.gov.br/press-releases/cade-and-central-bank-of-brazil-establish-working-group-on-competition-in-the-national-financial-system

45 CADE, Concentration Act No. 08700.006185/2016-56. See http://en.cade.gov.br/press-releases/cade-blocks-estacio2019s-acquisition-by-kroton.

46 CADE, Concentration Act No. 08700.006444/2016-49. See http://en.cade.gov.br/press-releases/cade-vetoed-the-acquisition-of-alesat-by-ipiranga.

47 CADE, Concentration Act No. 08700.007553/2016-83. See http://en.cade.gov.br/press-releases/cade-disapproves-the-acquisition-of-mataboi-by-jbj.

48 CADE, Concentration Act No. 08700.010790/2015-41. See http://en.cade.gov.br/press-releases/cade-authorizes-the-acquisition-of-citibank-retail-business-by-itau-unibanco.

49 CADE, Concentration Act No. 08700.004860/2016-11. See http://en.cade.gov.br/press-releases/cade-approves-with-restrictions-the-transaction-between-bm-f-bovespa-and-cetip.

50 CADE, Concentration Act No. 08700.001390/2017-14. See http://en.cade.gov.br/press-releases/time-warner2019s-purchase-by-at-t-is-approved-with-restrictions.

51 CADE, Concentration Act No. 08700.005937/2016-61. See http://en.cade.gov.br/press-releases/merger-between-dow-and-dupont-is-approved-with-restrictions.

52 CADE, Concentration Act No. 08700.002165/2017-97.

53 CADE, Concentration Act No. 08700.001097/2017-49.

54 CADE, Concentration Act No. 08700.007756/2017-51. http://en.cade.gov.br/press-releases/cade-
authorizes-the-selling-of-odebrecht2019s-participation-in-rio-de-janeiro-aeroportos.

55 See http://en.cade.gov.br/press-releases/cade2019s-general-superintendence-concludes-opinion-about-
transaction-between-owens-illinois-do-brasil-and-nadir-figueiredo.

56 The Portuguese version of the manual is available at: http://www.cade.gov.br/acesso-a-informacao/publicacoes-institucionais/guias-e-manuais-administrativos-e-procedimentais.

57 CADE, Concentration Act No. 08700.002155/2017-51. See http://en.cade.gov.br/press-releases/cade2019s-general-superintendence-concludes-opinion-on-transaction-between-ultragaz-and-liquigas.

58 CADE, Concentration Act No. 08700.004431/2017-16. See http://en.cade.gov.br/press-releases/cade2019s-general-superintendence-concludes-opinion-on-transaction-between-xp-and-itau.