I OVERVIEW

Since Law No. 12,529/2011 (the Brazilian Competition Act)2 entered into force in May 2012, introducing a system that concentrated the roles of three competition bodies into one, a pre-merger review system3 and revised rules to create better incentives and provide more legal certainty to leniency agreements and cease-and-desist agreements (settlements or TCCs, to use its acronym in Portuguese), the Administrative Council for Economic Defence (CADE), the Brazilian competition agency, has been functioning at a higher level of efficiency and improving the quality in its investigations and decisions. CADE's current institutional design, which is organised into three divisions or units (i.e., the Office of the Superintendent General (SG), the Administrative Tribunal (with seven commissioners) and the Department of Economic Studies (DEE)) is considered to have resolved overlaps of responsibilities that used to cause delays in the processing of investigations for anticompetitive conduct and in the review and approval of mergers.4 In addition to this, the pre-merger review system has exceeded expectations as to timing and efficiency, and CADE has been able to review and clear merger filings at a fast pace in recent years.

2019 was certainly a singular year to CADE. For almost three months, CADE's Administrative Tribunal did not have the minimum quorum to deliberate because the Federal Senate did not approve the individuals nominated by President of the Republic to become commissioners of the Administrative Tribunal. Therefore, during this period, all legal deadlines were suspended.

Despite these difficulties, CADE maintained the efficiency presented in previous years and tried to boost institutional strength of the authorities even more.

In this regard, CADE continued to impress with its fast review of merger notifications, with an average review time for cases eligible for the fast-track procedure of 16.8 days in 2019. Transactions reviewed under the regular procedure were cleared within an average of 89.4 days.5

According to CADE's estimates, 433 concentration acts were analysed in 2019, of which five were approved with restrictions. The SG declined to review a total of 17 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

CADE's Administrative Tribunal continued the past years' trend, subjecting mergers to substantial scrutiny and opposition, and even effectively blocking high-profile mergers. The competition analysis in merger control cases has become more complex and sophisticated as a result of CADE's accumulated experience and knowledge and of increasing challenges and contributions by third parties.

On the investigations front, CADE has been boosting enforcement of unilateral conduct offences. After eight years, the Administrative Tribunal dismissed three investigations against Google without convictions. In addition, CADE initiated 36 new investigations related to unilateral conducts.

Regarding cartels, CADE's Administrative Tribunal decided a relevant pending case fining 11 companies 535 million reais in relation to a cartel in public bids related to the State of São Paulo's subway and train systems. The investigation had been initiated many years ago after one of the companies executed a leniency agreement with CADE, the Federal Public Prosecutors' Office and the State of São Paulo Prosecutors' Office. Due to this leniency agreement, the Brazilian authorities conducted dawn raids in which they gathered 30 terabytes of data that were used as evidence. Several individuals were also convicted in criminal proceedings related to the case.

In 2019, CADE also executed 11 leniency agreements and 19 cease-and-desist agreements.7 The new evidence received helped to boost the number of investigations opened, which amounted to 89 cases in 2019.

Finally, the DEE also published seven papers8 regarding: (1) the Brazilian payment processing market; (2) the Brazilian cement market; (3) the rock cartel, decided by CADE in 2005; (4) antidumping; (5) the Sadia/Perdigão merger, approved by CADE in 2011; (6) the oil market in the Federal District; and (7) cartels in public bids.

II CARTELS

Since 2012, the SG, CADE's unit responsible for investigating anticompetitive conduct has been trying to clear the backlog of cartel cases. In 2019, CADE's Administrative Tribunal decided 15 cartel cases.9 In seven of them (46,7 per cent), CADE did not convict any defendants.10

i Significant cases

In 2019, CADE concluded several administrative proceedings concerning cartels.

In April, CADE's Administrative Tribunal convicted 27 gas stations, two distribution companies and two individuals for cartel practice in the fuel distribution and resale market in the city of Belo Horizonte. They received a 154 million reais fine.

In July, CADE found 11 companies and 41 individuals guilty of rigging public biddings related to the operation of subways and trains in the Federal District and in the states of Minas Gerais, Rio Grande do Sul and São Paulo. According to CADE, the total fines amounted to 515.6 million reais (US$135 million approximately). In addition, some defendants were also prohibited from executing agreements with the public administration.11

In June, CADE's Administrative Tribunal approved two cease-and-desist agreements in investigations in the automobile sector.12 According to the investigations, three companies reportedly set prices and commercial conditions, divided markets and exchanged commercially and competitively sensitive information in the national market of exhaust systems.

Another important case was the conviction, in January, of Hitachi LG Data Storage, Quanta Storage and 17 individuals for a cartel in the international market of thin film transistor liquid crystal display (TFT-LCD), with effects in Brazil. The fines amounted to 27.4 million reais. According to the reporting commissioner, Mr Mauricio Oscar Bandeira Maia, the collusion occurred between 2001 and 2006. During this period, Brazil did not manufacture the product, which is the main component of monitors and LCD notebooks, and the country depended entirely on importations. CADE stated the participants of the cartel made use of price fixing, market division, sharing of commercially sensitive information and restriction of production, controlling the supply and demand of the product. The cartel was coordinated by emails and regular periodic meetings between the companies' representatives.13

In February 2019, CADE concluded that manufacturers of air-insulated switchgear (AIS) had colluded. According to the Brazilian antitrust authority, the cartel was active between 1996 and 2007. The Administrative Tribunal convicted Toshiba do Brasil, Inepar Energi and Laelc Reativos, besides nine individuals, for national cartel activity in the AIS market, imposing fines totalling 56.1 million reais.

In October, CADE also executed several cease-and-desist agreements in different cartel investigations.

The authority executed a cease-and-desist agreement proposed by Takata Corporation and a related individual in an investigation of an alleged cartel in the international market of airbag modules, seat belts and steering wheels. The defendants were accused of sharing of sensitive information, marketing division and pricing offering.14

CADE executed a cease-and-desist agreement in the market of commercialisation of orthoses, prostheses and similar materials. The agreement was executed between CADE and the company Hemocat Comércio e Importação. The defended agreed to pay around 1 million reais.15

CADE executed a cease-and-desist with Sensus Metering Systems do Brasil and an individual in the market of water meter. According to CADE, there was evidence that the companies agreed and discussed prices in order to divide the market. Additionally, there is evidence that the companies involved in the conduct exchanged competitively sensitive information, combined prices, conditions, advantages or abstentions in bids, between 2010 and 2012. The company agreed to pay 2.6 million reais.16

CADE executed a cease-and-desist agreement with Refisa Indústria e Comércio and two individuals involving the national salt market. CADE stated there were evidence of price-fixing, customer division, exchange of sensitive information and meetings between competitors, between 2005 and 2013. The company agreed to pay around 200,000 reais.

CADE carried out three dawn raids related to cartels in 2019. In March, the Federal Prosecution Office, Rio de Janeiro's Prosecution Office and CADE carried out a dawn raid in an investigation on several public bids conducted by the city of Rio de Janeiro.17 In April, CADE and several state prosecution offices executed several search and seizure warrants in an investigation on several healthcare public bids.18 Finally, in October, CADE carried out a dawn raid in the states of São Paulo, Espírito Santo, Bahia and Minas Gerais in relation to the transportation of new vehicles.19

CADE also initiated 39 new cartel investigations in 2019,20 including investigations in relation to the 2014 FIFA World Cup,21 the national insurance market22 and the national pay-TV sports channel market.23

ii Trends, developments and strategies

Since CADE enacted Regulation No. 5/2013, on 6 March 2013, over 249 TCCs have been executed under the new Regulation , which modified the rules regarding settlements with the purpose of increasing the incentives for companies to cooperate by adding more predictability and transparency regarding the amount of contribution to be paid.24 In 2019, the Administrative Tribunal and the SG executed a total of 19 TCCs for anticompetitive conduct involving several markets, which amounted to 168 million reais in financial compensation being paid by the defendants.25 The aforementioned regulation on settlements has been proving 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.

In September 2018, CADE's Administrative Tribunal issued Resolution No. 21/2018, which governs the publicity of the documents used as evidence in administrative proceedings, including those obtained from leniency and cease-and-desist agreements. CADE's main objective was to allow access to the evidence obtained in the administrative investigations to third parties and to encourage private damages lawsuits. As mentioned above, Resolution No. 21/2018 may have an impact on the defendant's willingness to execute settlements or leniencies with CADE, and it may make CADE's leniency and settlements programmes riskier and less attractive. Its effects are yet to be seen and assessed.

iii Outlook

An examination of the 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. In 2018, CADE continued to analyse and to execute agreements concerning public biddings and, in 2019, in spite of the lack of quorum, CADE's Tribunal decided one of its most important pending cases – the cartel in public bids related to São Paulo's subway and trainway systems.

In the past few years, CADE has devoted a substantial amount of resources to the investigations and leniency agreements related to Operation Car Wash. Owing to the profiles of the new Ministers of Justice and of Economy, CADE is expected to allocate even more resources to tackling cartels, especially cartels in public biddings. 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 historically been understaffed. Despite 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 enough personnel and resources.

III ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE

i Significant cases

In 2019, CADE's Administrative Tribunal ruled on 10 cases related to unilateral conducts. Since 2017, the investigation of unilateral anticompetitive behaviour has been one of the priorities of CADE's current General Superintendent.26

In June 2019, CADE closed three administrative proceedings involving Google, which concerned an investigation into online search marketing.

The first case was related to Google Shopping, a price comparison tool.27 The case was based on a complaint filed by E-Commerce Media Group Informação e Tecnologia in 2011 in which the company stated Google was using its regular search tool to leverage Google Shopping by prioritising Google Shopping in the list of search results. However, CADE's Administrative Tribunal decided that there was no evidence of anticompetitive conduct and dismissed the complaint. 28

In the second investigation, Google was also accused of practicing 'scraping'29 – a strategy used to scrape relevant content from its competitors' websites. According to the complaint, Google Shopping had unlawfully collected costumers' reviews from competing price comparison websites, such as Buscapé and Bondfaro. Therefore, once opinions of users about products and services add relevant information to the websites as well as represent an attraction for price comparison tools, Google was misusing its dominant position acquiring competitive advantages with that practice.30 In this case, CADE's Administrative Tribunal dismissed the complaint, due to lack of evidence in the investigated period. Commissioner Polyanna Vilanova concluded that no anticompetitive acts were committed.31

Microsoft also filed a complaint against Google, claiming that the company abused its market dominance by imposing restrictive clauses in contracts with third-party websites involving Google's marketing platform named Google AdWords.32 Through AdWords for Search, Google provides advertising space on its website page to advertisers, allowing them to manage the keywords to which they want to associate their ads. According to Microsoft, Google would have imposed restrictions that would have make it difficult for advertisers to manage their advertising campaigns simultaneously on Google and other competing search tools. The practice – called 'multihoming' – seeks to facilitate and reduce the costs of setting up and managing campaigns on different search platforms, as well as to simplify the comparison of the performance of each platform. Therefore, Google would end up discouraging advertisers from also running campaigns on rival search engines, hindering the development of these competitors with a reduced market share.33 As a conclusion, CADE's Administrative Tribunal decided that there were no abusive clauses in the investigated contracts, concluding for the dismissal of the complaint.34

In June 2019, CADE's Administrative Tribunal opened six administrative proceedings in order to investigate exclusivity agreements executed with the federal government relating to the supply of consigned credit. The companies involved were Itaú Unibanco S/A, Caixa Econômica Federal, Santander S/A, Bradesco S/A, Banco do Estado do Rio Grande do Sul S/A and Banco de Brasília.35 The investigation started in 2012, after the cease-and-desist agreement executed between CADE and Banco do Brasil. The state-owned financial institution committed itself to end the exclusivity agreements. During the negotiations, Banco do Brasil claimed that other banks were practicing the same unlawful acts, starting the investigations. Regarding HSBC, Banco do Estado do Espírito Santo, Bank of the State of Sergipe and Bank of the State of Pará, the investigation was closed due to lack of evidence. For the others above-mentioned banks, the investigations are still ongoing.36

In October 2019, CADE condemned Tecon Suape to pay 71.1 million reais for abuse of its dominant position in the market of storage of containers in the Port of Suape, located in the state of Pernambuco.37 According to Suata Serviço Unificado de Armazenagem and Terminal Alfandegado e Atlântico Terminais, the companies that requested the preventive measure granted by CADE' Administrative Tribunal's, Tecon Suape, in its capacity as port operator, was imposing additional charges as investment recovery and equipment maintenance in an attempt to meet the requirements of the International Ship and Port Security Code.38 Commissioner Maurício Bandeira Maia concluded that Tecon Suape was a monopolist in the port terminal in which it was active and abused its dominant position to impose commercial conditions. The Commissioner also decided that the charge caused significant harm to Tecon Suape's competitors, once it superficially increases the prices of the storage of containers services. Additionally, the Commissioner points out that the charges would be lawful if imposed on shipowners as a part of the box rate, and not on the storage of containers. As a conclusion, CADE's Administrative Tribunal decided that Tecon Suape is not allowed to demand any charges in that sense.39

In October 2019, CADE also executed five cease-and-desist agreements with major banks after a lengthy investigation into anticompetitive practices in the electronic payment market.40 CADE initiated this investigation in 2016 to probe, among other things, the banks' exclusivity contracts with commercial establishments and the adoption of other anticompetitive practices that prevented small companies from accessing the market. As a pecuniary contribution, Itaú and Rede agreed to pay 21 million reais to the Fund for the Defence of Diffuse Rights. In addition, Banco do Brasil and Bradesco agreed to pay 1.9 million reais and 2.2 million reais in fines, respectively. Cielo SA, which is controlled by Banco do Brasil and Bradesco and is considered Brazil's largest credit and debit card operator, also paid 29.7 million reais.41 This was the largest nominal contribution ever collected by CADE in a TCC involving unilateral conduct.

ii Trends, developments and strategies

As previously mentioned, since 2017, the current General Superintendent has been stating 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.42 This statement was reinforced by CADE's President in his 2018 review.43 In 2019, CADE initiated 36 new investigations on unilateral conduct.44

iii Outlook

CADE's enforcement priorities were always clearly focused on fighting cartels, meaning that cases involving unilateral conduct represented a lower proportion of CADE's enforcement activities. Since 2017, public speeches by competition authorities have been indicating a possible shift on this policy and more enforcement in this area. Although there was a noticeable change in the level of enforcement against unilateral conduct, CADE still allocates much more resources to fighting cartels. It will be important to track closely how CADE's efforts related to unilateral acts will unfold in 2019, especially considering the new authorities to be appointed by the new government.

IV SECTORAL COMPETITION: MARKET INVESTIGATIONS AND REGULATED INDUSTRIES

i Significant cases

In 2019, CADE's investigations on regulated markets clearly focused on the financial industry – especially regarding Brazil's five major bank conglomerates. In April 2019, CADE initiated a proceeding to investigate possible unilateral practices of Banco do Brasil, Bradesco, Caixa Econômica Federal and Santander aimed at preventing the entry of fintechs in the credit card issuer market. In October 2019, CADE initiated an investigation on the Itaú Group to assess whether the group was conducting anticompetitive practices in the payment market. CADE's Administrative Tribunal preventively ordered that Rede (a company of the Itaú Group) ceased a commercial practice that charged lower payment rates to sellers that had an Itaú bank account.

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. After years of discussion regarding CADE's jurisdiction to enforce competition law over banking mergers and conduct, CADE and the Brazilian Central Bank (BACEN) have finally reached an agreement. As the Brazilian Competition Act does not limit CADE's jurisdiction to enforce competition law in regulated sectors, CADE understood that it had 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 BACEN, according to which BACEN should be solely responsible for enforcing competition law in the banking sector due to the sector's peculiarities. In 2017, CADE and BACEN established a working group to develop studies about competition defence in the Brazilian financial system. In 2018, these bodies signed a memorandum of understanding (MoU) to coordinate and give greater predictability to the assessment of mergers involving companies in the financial sector. This MoU states that BACEN and CADE will foster the exchange of information and that a consent from both bodies will be required for approval of mergers.45

In addition, CADE was also active in trying to influence public policy regarding regulated sectors. In May 2018, due to the truckers' strike initiated after a rise in diesel prices, CADE proposed several measures to reduce gas prices in Brazil. The government, however, decided to fix delivery prices. In June, CADE sent an opinion to the Brazilian Supreme Court (STF) arguing the government's policy harmed consumers, the market and the free competition. CADE opposed the policy, arguing it had effects similar to those of a cartel. The authority also initiated a preparatory procedure to probe any anticompetitive conduct.46 The STF did not render a final decision on this matter.

As result, in January, 2019, CADE and the National Agency of Land Transportation executed a technical cooperation agreement to establish an institutional partnership, including the sharing of exchange documents and information, databases, reports, diagnostics and statistics technical opinions or results of studies.47 In the same month, CADE and the National Agency for Supplementary Health Services executed a similar technical cooperation agreement.48 In November, CADE held an open audience to debate the competitive impacts of the Brazilian financial sector's verticalisation. The panels counted on the contributions of several experts, public officers and companies' representatives, who debated the structure of this specific market and related competition concerns. CADE's President declared 'CADE understands the necessity to participate actively in discussions about possible solutions to enhance the competition environment in the financial sector'. In December, CADE and the National Civil Aviation Agency of Brazil (ANAC) also held a joint seminar to discuss the competitive impacts of ANAC's regulations on the market. The event discussed major questions in this market, such as: joint business agreements, slots competition, a ban on companies controlled by foreigners, competition between airports, and low-cost flights.

In May, CADE issued Ordinance No. 292/2019, which seeks to anonymise the identity of a whistle-blower for 100 years. The secrecy of identity seeks to offer greater security to people who report cartels and other anticompetitive conduct to CADE without being involved in illicit practices.49 In the same month, CADE and Rio de Janeiro's and Pernambuco's State Prosecutors Office signed a co-operation agreements with the objective of expanding the communication between Cade and state prosecution offices to ensure greater efficiency and agility in actions to prevent and repress cartel practices and other violations of the economic order.50

In 2019, CADE's Department of Economic Studies published seven papers,51 regarding: (1) the Brazilian payment processing market; (2) the Brazilian cement market; (3) the rock cartel, decided by CADE in 2005; (4) antidumping; (5) the Sadia/Perdigão merger, approved by CADE in 2011; (6) the oil market in the Federal District; and (7) cartel in public bids.

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

CADE continues 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 consistently 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.52

In 2019, 442 concentration acts were submitted to CADE's review and the authority ruled on 433 cases. The vast majority (406 out of 433) were approved unconditionally, and only five were approved subject to remedies. The other 22 transactions were either withdrawn or not subjected to the mandatory filling criteria provided by the Brazilian Competition Act.

i Significant cases

CADE reviewed several high-profile merger cases in 2019, 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 February 2019, CADE approved with restriction the acquisition of AllChemistry by SM Empreendimentos,53 both pharmaceutical compounding companies.

One of the 2019 most important transaction subject to remedies was the acquisition of 21st Century Fox by The Walt Disney Company. The transaction received the green light subject to the sale of the Fox Sports channels, among other measures negotiated in a merger control agreement. The Tribunal decided for the application of structural remedies, since it understood that the merger generated competition concerns in the market of cable sports channels, which included ESPN (owned by The Walt Disney Company) and Fox Sports (owned by 21st Century Fox). CADE stated the transaction would leave the market of cable sports channels even more concentrated, with increased probability of The Walt Disney Company exercising its market power. Furthermore, there would be a potential decrease in the quality and diversity of available sports content, as well as an increase in costs that could be passed along to consumers. On November 2019, CADE decided that the acquisition of 21st Century Fox by The Walt Disney Company will be reviewed due to the impossibility of complying with the executed merger control agreement. The review is still pending; however, it will be the first time since the Brazilian Competition Act came into force, that CADE will review its own decision.

In May, CADE also approved with restrictions Notre Dame Intermédica's acquisition of Mediplan.54 The reporting commissioner, Polyanna Vilanova, analysed possible risks to competition resulting from the verticalisation of healthcare operators with their own hospitals. The parties agreed to behavioural remedies such as not to discriminate against competing healthcare operators or hospitals, or both.

In April 2019, CADE also approved with restrictions the joint venture formed by GSK and Pfizer.55 According to the reporting commissioner, Paula Azevedo, there was a low offensive potential to competition in national markets for calcium-based products; dermatological topical antifungals; topical anti-rheumatic and analgesic products; non-narcotic pain relievers; and non-prescription antipyretics. However, the post-operation scenario in the national market for simple antacids reveals high concentration, a fact that raises competitive concerns.56

In December 2019, CADE's Administrative Tribunal also approved the transaction between Prosegur and Transvip with remedies.57 During the analysis, competitive concerns were raised regarding the movement of acquisitions in the securities transportation market, evidenced by the high number of transactions submitted to CADE in recent years. This has generated an increase in concentration and a non-organic growth pattern for economic agents in this sector. According to the reporting commissioner, Paula Azevedo, the proposed agreement aims to mitigate these concerns by limiting the acquisition during a three-year period.58

Gun jumping

In December 2019, CADE initiated an administrative procedure to investigate an act of concentration (APAC) concerning to the consummation of the acquisition of Red Hat by IBM before CADE's final decision. IBM and Red Hat filed the transaction to CADE in April 2019. The SG recommended the unrestricted approval of the merger in June and, days later, the Administrative Tribunal called the case for second review. In July, when the process was still under the revision of the Tribunal, the companies informed CADE of the closing of the transaction. The companies were fined 57 million reais for closing the transaction before CADE's Tribunal rendered its final decision on the case.

ii Trends, developments and strategies

The new trends in merger review in 2019 and 2020 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. In the past few years, CADE has toughened its assessments regarding mergers in general. Vertical integrations that, at another time, would be easily cleared under the fast-track procedure are now strictly scrutinised by CADE.59
  3. Based on the profile of the new government and on an analyses carried out by the specialist press,60 there is an expectation that the new members appointed by the new government in 2019 to take seat at CADE's Tribunal may adopt a more pro-business approach in the review and approval of mergers and acquisitions.

iii Outlook

CADE has proved to be 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 2019.

VI CONCLUSIONS

i Pending cases and legislation

In the area of anti-cartel enforcement, CADE's Administrative Tribunal is expected to decide various cases that were reviewed by the SG in 2019 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.

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 seven 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. In 2019, CADE was also affected by the lack of quorum in the Administrative Tribunal. However, with the quorum re-established, CADE is expected to return to its normal activities and be more active in 2020 than in 2019.

Nonetheless, 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.


Footnotes

1 Mariana Villela and Leonardo Maniglia Duarte are partners, Gabriela Reis Paiva Monteiro is an associate and Vinicius da Silva Cardoso is a junior lawyer at Veirano Advogados.

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

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

4 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.

9 According to 'CADE em Números', CADE decided 15 cartel cases in 2019. 'CADE em Números', available at www.cadenumeros.cade.gov.br.

10 'CADE em Números', available at www.cadenumeros.cade.gov.br.

12 Administrative Proceeding No. 08700.001486 /2017-74.

14 Administrative Proceeding No. 08700.002938/2017-35.

15 Administrative Proceeding No. 08700.009165/2015-56.

16 Administrative Proceeding No. 08700.009165/2015-56.

24 The Regulation 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.

27 Administrative Proceeding No. 08012.010483/2011-94.

29 Administrative Proceeding No. 08700.009082/2013-03.

32 Administrative Proceeding No. 08700.009082/2013-03.

35 Administrative Proceeding No. 08700.005770/2015-58, 08700.005766/2015-90, 08700.005781/2015-38, 08700.005761/2015-67, 08700.005759/2015-98, 08700.005755/2015-18.

37 Administrative Proceeding No. 08700.005418/2017-84.

40 Administrative Proceeding No. 08700.001860/2016-51.

41 See www.cade.gov.br/noticias/acordo-revoga-tabela-de-honorarios-para-corretores-de-imoveis. Exchange rate as at 31 December 31 (1 real = US$0.2580778).

43 'Balanço da atuação do Cade em 2018', available at www.jota.info/opiniao-e-analise/artigos/balanco-da-atuacao-do-cade-em-2018-20012019.

53 Concentration Act No. 08700.005972/2018-42.

54 Concentration Act No. 08700.005705/2018-75.

55 Concentration Act No. 08700.001206/2019-90.

57 Concentration Act No. 08700.003244/2019-87.

59 E.g., see CADE, Concentration Act No. 08700.002276/2018-84, a RAN sharing agreement between Oi and Tim. Initially, SG-CADE decided the transaction did not meet the criteria of mandatory filing. However, CADE's Tribunal decided to call up the case and analyse it thoroughly.