The Public Competition Enforcement Review: Brazil


Law No. 12,529/2011 (the Competition Act) establishes a pre-merger review system, rules for the prosecution and punishment of anticompetitive conduct, and leniency and settlement programmes in Brazil. The Administrative Council for Economic Defence (CADE) is the Brazilian competition agency in charge of enforcing the Competition Act. CADE is organised into three main divisions or units: (1) the Office of the Superintendent General (SG); (2) the Administrative Tribunal (with seven commissioners); and (3) the Department of Economic Studies (DEE).

Despite the challenges presented by the covid-19 outbreak, in 2021, CADE managed to increase the number of mergers it reviewed and these included several high-profile cases involving the payment services market; joint ventures between Latam and Delta, and Fleury and Sabin; and the acquisition of Eaton by Danfoss and of Unidas by Localiza.

According to CADE's own figures, 611 mergers were analysed in 2021, of which six were approved with restrictions. The SG declined to review a total of 19 transactions, concluding that they did not require a merger filing because they either did not meet the legal turnover thresholds or did not qualify as a merger (which would require to be notified to CADE, pursuant to the Competition Act).2

The CADE Administrative Tribunal continued the trend of previous years, subjecting mergers to substantial scrutiny and opposition, although no decisions were rendered completely blocking a transaction. The competition analysis in merger control cases has continued to increase in complexity as a result both of CADE's accumulated experience and knowledge and of the increasing number of challenges and contributions presented by third parties.

The investigations front was especially affected by the covid-19 outbreak, particularly CADE's ability to conduct dawn-raid operations. The restrictions imposed by the pandemic contributed to a reduction in the number of new settlements and slowed the pace of recently opened cases. Nevertheless, there were some important developments in investigations into horizontal conduct. The Administrative Tribunal closed a cartel investigation in the sanitation market after recognising that the case instruction was poorly conducted and contained several errors, such as the nullification of the hearing of several witnesses.3 In addition, CADE disclosed an investigation into exchanges of information among human resources departments of several companies in the healthcare sector – a type of conduct with no record of antitrust intervention in Brazil.4

In 2021, CADE executed five leniency agreements5 and opened 314 investigations.

In addition, the DEE published seven working papers regarding:

  1. international benchmarking on the structure, functions and interrelationships of institutions;
  2. an update on the debate on the definition of relevant markets;
  3. measurement of the benefits expected from CADE's actions in 2020;
  4. essays on supplemental health care;
  5. ex post mergers evaluation – with evidence from the Brazilian airline industry;
  6. international benchmarking on antitrust and data protection institutions; and
  7. the problematic binary approach to the concept of dominance.6


In 2021, the SG continued to clear the backlog of cartel cases initiated in previous years. In this period, the Administrative Tribunal decided 19 cartel cases. In six of them (31.6 per cent of total cases), CADE did not convict any defendants.7

i Significant cases

In 2021, CADE concluded several administrative proceedings concerning cartels.

In May, the Administrative Tribunal elected to close a cartel investigation in the sanitation market after recognising that the hearing of witnesses had been rendered null and void under the 'fruit of the poisonous tree' doctrine, whereby illegally obtained evidence is considered inadmissible. The Tribunal understood that the witness testimony had only been made available by means of illegal wiretapping. In addition, The Tribunal found that the SG had not conducted the evidentiary stage properly, failing in its obligations to provide the defendants opportunities to be heard in relation to all the evidence.8

Also in May, CADE found four companies, seven individuals and one commercial association guilty of cartel practices in the international air and maritime freight forwarding market for cargo to or from Brazil.9 The fines totalled 31.2 million reais. According to the majority of the commissioners, the evidence gathered showed that the cartel participants agreed to raise international and domestic fees. Furthermore, 19 companies and nine individuals entered cease-and-desist agreements with CADE.10

In June, CADE fined five companies and six individuals 192.2 million reais for cartel formation in public bids for the supply of PVC pipes and connections for sanitation infrastructure works, building works and civil construction.11 The investigation began in 2016 after the execution of a leniency agreement with the company Tigre. Cartel members engaged in artificial price-fixing, division of public bids, exchange of competitively sensitive information and allocation of private customers. CADE also executed cease-and-desist agreements with three companies, which agreed to contribute 104.4 million reais to the Fund for Collective and Diffuse Rights.12

Cartel investigation was severely impacted by the covid-19 pandemic, particularly CADE's ability to conduct dawn-raid operations, but the authority still managed to initiate a noteworthy investigation into an international pharmaceutical cartel in 2021. The SG detected evidence that the investigated companies had anticompetitive agreements with the objective of defining production and sales quantities of the substance scopolamine, coordinating prices of the drug, creating entry barriers to competitors and protecting preferential territories or customers. In addition, the SG believes that exchanges of competitively sensitive information between the companies are likely to have occurred.13

In 2021, CADE also released a document entitled 'Bid Rigging Cartel – Warning Signs',14 with instructions on the characteristics of a bid rigging cartel and signs of this kind of activity at the beginning of the bidding process, during it and at the conclusion, listing suspicious behaviours of bidders at each stage that may indicate a cartel.

From January 2021 to October 2021, CADE initiated 58 new anticompetitive investigations.15

ii Trends, developments and strategies

In 2021, the Administrative Tribunal and the SG executed a total of eight cease-and-desist settlements for anticompetitive conduct, involving several markets and resulting in 58.8 million reais in financial compensation being paid by the defendants.16 The CADE Regulation No. 5/2013 on settlements, enacted on 6 March 2013,17 has proved to be an effective tool for concluding investigations that could otherwise take years to be decided, thus releasing public resources for other investigations in Brazil.

Another significant recent trend concerns CADE's activities in the human resources market in the healthcare sector. Unlike other antitrust authorities, which issued guidelines in recent years, CADE never issued guidelines, studies or warnings dealing with the human resources market. Nevertheless, in 2021, CADE announced an investigation into healthcare companies, in which the investigated companies exchanged sensitive information about the labour market, such as hiring conditions, remuneration and benefits offered to employees, among other things. According to the SG's statements, it is still unclear whether this conduct also encompasses cartels.

iii Outlook

In the past few years, CADE has devoted a substantial amount of resources to investigations and leniency agreements related to Operation Car Wash. This may have had the side effect of delaying the further development of other investigations and preventing CADE from initiating new ones. In addition, the covid-19 outbreak and the increase in merger cases seem to have further reduced the authority's capacity to initiate new investigations. This scenario highlights the importance of boosting CADE's human and financial resources, as historically CADE has been understaffed. Despite the agency's commitment to efficient enforcement, and its continued development in recent years, there is a risk that because of a lack of personnel and adequate resources certain antitrust violations may go undetected and unpunished, to the detriment of free competition and Brazilian consumers.

Antitrust: restrictive agreements and dominance

i Significant cases

In 2021, the Administrative Tribunal ruled on three cases related to unilateral conduct.

In February, CADE found Tecon Suape to be abusing its dominant position by charging the Terminal Handling Charge 2,18 also known as the Segregation and Delivery Service fee (SSE). The port operator was fined approximately 9 million reais. Although the collection of the SSE is in itself not considered illegal from the standpoint of the National Agency for Waterway Transportation (Antaq), it is CADE's responsibility to ascertain whether its collection by the operator constitutes a violation of the economic order because of its potential to produce anticompetitive effects. In this sense, the analysis conducted during the process showed that the collection of the SSE by Tecon Suape was abusive, as some of the costs had already been paid by the shipowner to the port operator through the basic fee. There was, therefore, a double charge. In addition, the practice had a discriminatory character, since Tecon Suape did not charge the SSE when it carried out the storage of goods itself.19

In November 2021, CADE condemned Rumo Logística Operadora Multimodal (Rumo) and Rumo group company América Latina Logística (ALL) for abusing their dominant position and creating difficulties for rival companies in the logistics market for sugar exports via rail transportation.20 The fines imposed on the companies totalled 247.1 million reais. The investigation began in 2016, based on a complaint filed by Agrovia, a provider of integrated logistics services via rail for sugar exports. Agrovia claimed at the time that it depended on the use of the railroad Malha Paulista (controlled by Rumo–ALL) to transport sugar to the Port of Santos in São Paulo, and that Rumo–ALL was creating obstacles to its operation by blocking the yard essential to its activities. This made it impossible for Agrovia to provide services to customers during the off-season, as it was alleged that the yard posed safety risks because of lack of maintenance and repairs. The complainant stated that ultimately it had to cease activities because of Rumo–ALL's anticompetitive behaviour. In addition, the complaint was supported by a communication sent to CADE by the National Agency of Land Transportation (ANTT), which verified the existence of evidence of an economic order violation in ANTT proceedings involving the same companies.21

CADE also issued two significant injunction orders in 2021. In March, CADE granted a preliminary injunction against the food delivery app iFood, which was prevented from entering into exclusivity agreements with restaurants.22 The decision came after a complaint filed by competitor Rappi, arguing that iFood has a dominant position and adopts practices that restrict competition, mainly through the massive signing of exclusivity agreements. Several other iFood competitors agreed with Rappi as interested third parties in the investigation. The SG found that iFood does indeed hold a dominant position in the relevant market and that iFood's exclusivity clauses have a high potential to harm competition.23

In December, CADE granted a preliminary injunction preventing Gympass from closing new exclusivity contracts with gyms in Brazil. In addition, CADE also prohibited the price parity requirement imposed by Gympass on partner gyms.24

ii Trends, developments and strategies

CADE's enforcement priorities have previously always focused on fighting cartels, which meant that cases involving unilateral conduct represented a lower proportion of CADE's enforcement activities. Since 2017, public speeches by competition authorities have indicated a possible shift in this policy and therefore more enforcement in this area.

Although there has been an increase in the level of enforcement against unilateral conduct, CADE still allocates more resources to fighting cartels and to the review of merger control cases, and this contributes to delays in investigations into unilateral conduct and also to less enforcement in this area of antitrust.

Recently, the President of CADE, Mr Alexandre Cordeiro, complained that CADE's structure harms the investigation of unilateral conduct. He explained that the CADE officials working on unilateral conduct cases must stop their work whenever new mergers are submitted for assessment. Mr Cordeiro suggested a coordinator dedicated to the analysis of unilateral conduct may solve this problem. However, it is still unclear whether Mr Cordeiro will implement this structural change.25

iii Outlook

It will be important to track how CADE's efforts related to unilateral acts unfold in 2022 and whether there will be an increase in enforcement in this area.

Sectoral competition: market investigations and regulated industries

i Significant cases

As mentioned in Section III, in the ports sector, CADE decided a case involving the charging of the SSE. This judgment revived the discussion about CADE's jurisdiction to review cases in regulated markets. In June, CADE and Antaq signed a memorandum of understanding establishing common procedures for assessing these fee charges. The objective of the agreement is to bring legal certainty to the Brazilian port sector and, at the same time, to prevent abusive charges for port services through a uniform, integrated, coordinated and non-overlapping action between the two agencies. The memorandum of understanding provides that the collection of the fee may be considered abusive and characterised as conduct harmful to the competitive environment if, inter alia, the abusive nature of the amounts charged, the discriminatory nature of the charge and the lack of economic rationality are verified. Through the agreement, CADE and Antaq also committed to communicate immediately the initiation of proceedings regarding the charging of the SSE and their corresponding decisions; to promote studies on the regulated market, aiming to exchange experiences and improve the sector's databases and technical analysis on various topics; and to promote an exchange on the technical areas involved in the analysis of processes and regulation of the charging of the SSE.26

As also mentioned in Section III, in the rail transportation industry, CADE condemned Rumo Logística Operadora Multimodal (Rumo) and América Latina Logística (ALL) for abusing its dominant position and creating difficulties for rival companies in the logistics market for sugar exports. The complaint filed by Agrovia had been reinforced by a communication sent to CADE by ANTT, verifying the existence of evidence of an economic order violation in proceedings involving the same companies.27

ii Trends, developments and strategies

The Competition Act does not limit CADE's jurisdiction to enforce competition law in regulated sectors, although in certain situations the scope and nature of CADE's jurisdiction are subject to dissent.

CADE has been very vocal about its concerns regarding competition in digital markets, in line with international trends in this area. The DEE issued a thorough report on the issue in August 2020 and since then has made various speeches about the need for CADE to be updated on the most current and relevant discussions in this area, considering the particular nature of the challenges that these markets present. Although digital markets are not regulated by a general law, some participants in this market may also be active in regulated industries.

iii Outlook

CADE is expected to continue to enforce competition law in regulated sectors, where applicable, particularly where sectoral regulation fails to prevent and repress practices that may be harmful to competition. In 2022, CADE will finish reviewing the joint acquisition of Oi's mobile services assets by mobile operators Claro, TIM and Vivo in the telecoms sector. This is a very significant case in the telecoms sector and will require competition approval by CADE and regulatory approval by Anatel, the telecoms regulator in Brazil.

State aid

The Brazilian Competition Act does not have provisions regarding state aid.

Merger review

In the second year of the covid-19 pandemic, CADE continued to improve its merger review performance. In 2021, CADE analysed a record 611 mergers28 – an incredible 34.6 per cent increase on the previous record, the 454 mergers analysed in 2020.

According to CADE's official figures:

  1. of the total mergers assessed, 527 (86.3 per cent) were analysed under the fast-track procedure and 84 under the ordinary procedure;
  2. 585 mergers (95.7 per cent) were approved without restrictions and only six were approved subject to remedies;
  3. from January to October, the average assessment period was 32.5 days29 (19.8 days for fast-track cases and 112.2 days for ordinary cases); and
  4. the two months with the most cases were August (75) and December (76).

i Significant cases

In 2021, CADE reviewed significant cases involving several markets, including six mergers approved subject to remedies.

In February, CADE approved without restrictions a joint venture between Latam Airlines Group, which operates mainly in the passenger and cargo air transport markets, and Delta Airlines, an American company that provides air transport services for passengers and cargo.30 The transaction allowed both companies to operate passenger and cargo air transport services on routes between the United States, Canada and countries in South America. The SG approved the transaction without restrictions, which was also the position adopted in the Administrative Tribunal's decision.

In April, the Administrative Tribunal approved the acquisition of Hub Pagamentos by the Magalu Group, a major multichannel retail company.31 According to Magalu, the acquisition of Hub Pagamentos aimed at offering a complete portfolio of banking services through Magalu's app. The SG approved the transaction without restrictions. However, the Mercado Livre group (a competitor in the e-commerce market) appealed the decision, arguing that this was a data-driven merger and, therefore, Magalu was actually acquiring competitors' data owned by Hub Pagamentos (the company had supply agreements with several of Magalu's competitors). The Administrative Tribunal upheld the SG's decision, stating there was no evidence that Mercado Livre's data would be used in markets in which Magalu competed with Mercado Livre; the transaction did not create nor increase any dominant position; it did not raise any entry barriers; it did not reduce competition; and it did not increase the probability of market foreclosure.

In May, CADE approved the acquisition of Eaton's hydraulic business by Danfoss.32 Danfoss is a company that manufactures components for off-road mobile machinery and Eaton Hydraulics is involved in the production and sale of hydraulic components for industrial and mobile equipment. The transaction was approved subject to behavioural and structural remedies.

Since the transaction was subject to antitrust approval in the United States, the European Union, Ukraine, Egypt, China, South Korea, Mexico, Australia and Turkey, CADE engaged in dialogue with the applicants and several other antitrust authorities to establish a single remedy package to address antitrust concerns in all jurisdictions. The remedy package included the establishment of a stand-alone business unit with several of Danfoss' and Eaton's product lines (named White Drive Motors & Steering), which would immediately be sold by Danfoss to a purchaser approved by CADE.

Another operation also approved subject to remedies was the sale of Petrobras' stake in the Gemini GásLocal liquefied natural gas (LNG) company to White Martins.33 Petrobras committed to leave the Gemini Consortium, a joint venture formed by White Martins and Gemini GásLocal that aims to produce and market LNG in Brazil.

The structure of the Gemini Consortium has raised competition concerns with CADE for a number of years and has been the subject of proceedings investigating discriminatory treatment of competitors and market foreclosure related to the joint venture arrangement. The approval of the transaction reduces but does not entirely eliminate possible incentives for anticompetitive conduct that may be committed by Petrobras.

In June, CADE approved the acquisition of the cloud-based tech company Linx by the Stone Group, which provides payment services and technological infrastructure for capturing, transmitting and processing data and settling transactions.34 The transaction was originally approved by the SG, but Stone's competitors Adyen, Safra and Cielo appealed the decision. The appellants argued that (1) Lynx has a dominant position that could be used by Stone to foreclose the market; and (2) Lynx provided relevant services to several of Stones' competitors, allowing Stone access to sensitive data. The Administrative Tribunal approved the transaction, stating that there was no risk of market foreclosure and that the competitors' data owned by Lynx was actually public and could be gathered by other competitors.

In November, the SG issued an opinion recommending that the acquisition of Oi Group's mobile telephone assets by competing operators TIM, Claro and Telefonica35 be approved subject to remedies. The SG stated that the transaction would reduce the number of major participants in this market from four to three, increasing the risk of market foreclosure. The authority proposed behavioural remedies that could mitigate the risk, such as radio access network sharing agreements, obligations to rent spectrum in several municipalities, obligations to facilitate the operations of mobile virtual network operators, and obligations related to roaming access, etc. The Administrative Tribunal is expected to decide on this case in 2022 and may (or may not) follow the SG's recommendation.

In December, CADE authorised SAS Shipping Services SARL (SAS) to exercise certain controlling rights in Log-In Logística Intermodal (Log-In)36 while the acquisition of Log-In is being assessed by the authority. The CADE commissioners unanimously decided to grant the SAS request to exercise some corporate control over Log-In subject to certain conditions, until the Tribunal makes a final decision on the transaction or issues a decision revoking the authorisation granted.

Because of CADE's decision, SAS may immediately appoint a new member to the board of directors of Log-In. In this case, for the appointment to be valid, SAS must inform CADE of the names of at least three possible directors who must meet the criteria established in advance. Among other obligations, the appointed director must execute a term agreement with CADE before taking office.

CADE also granted SAS convening and voting rights in general meetings. These meetings are to be convened to discuss matters that may change the regular course of Log-In's business or directly and negatively affect the value of SAS' investment. However, SAS voting rights on the Log-In board of directors are limited to specific cases, such as: the appointment, removal or replacement of a member of the board of directors; specific amendments to the articles of incorporation; and ratification or amendments to the compensation plan based on the actions of Log-In that could result in share dilution.

In the Administrative Tribunal's final meeting of 2021, the agency also cleared the Localiza acquisition of Unidas, subject to remedies.37 Localiza and Unidas are the two biggest car rental companies in Brazil. According to the reporting commissioner on the case, as a result of the transaction, only one other company would be able to compete nationwide with the merged entity and, therefore, the transaction was likely to result in abuse of economic power in the car rental market, with significant risks to competition in this sector.

To mitigate these concerns, the parties and CADE reached an agreement that provides behavioural and structural remedies. The merged entity must sell the Unidas brand and part of the Unidas branch network, stores, systems and operational fleet. As to the behavioural remedies, the parties agreed (1) to make no new acquisitions in the car rental market for the next three years; (2) to submit for approval by the authority any transactions made in this segment in the fourth and fifth years after closing; and (3) not to enforce the non-compete clause provided in an agreement signed in 2020 with Vanguard Car Rental (owner of the Alamo, Enterprise and National brands).

ii Trends, developments and strategies

The trends in merger review in 2021 were as follows.

The SG's merger review efficiency has continued to improve significantly in recent years. The authority managed to assess 157 more cases than it did in 2020, with little impact on the average length of the period of analysis.

Increasingly, there seem to be disagreements between Administrative Tribunal commissioners. On a few occasions in 2021, the Commissioners publicly stated their dissatisfaction with one another. This situation increases the unpredictability of their decisions.

There also seems to be an increasing divergence of opinion between the SG and the current composition of the Tribunal. Some commissioners have indicated that they may be willing to overturn long-established jurisprudence. As a result, there has been an increase both in the number of cases raised by the Tribunal and in the number of split decisions.


i Pending cases and legislation

There was a substantial reduction in the number of anti-cartel enforcement investigations in 2021, as well as in the number of leniency agreements and settlements executed. New investigations opened by the SG are expected to be continued, especially those related to big-tech exclusionary conduct, port markets, human resources and the pharmaceuticals industry. Furthermore, CADE has been adopting a more stringent position on merger review in relation to health insurance, hospitals, pharmaceuticals and telecommunications.

ii Analysis

The jurisdictional antitrust scenario in Brazil continues to be dynamic and appears to have successfully achieved the essential objectives of antitrust law by adhering to an innovative system of pre-merger structure control yet maintaining one of the shortest merger approval periods in the world.

Also, CADE's adaptation to the pandemic was successful, mainly because of its effective remote-work programme, which was duly recognised with an award.38 The return of in-person sessions was further delayed because of new cases of influenza and covid-19, and it is still uncertain when face-to-face activities will be resumed.

In 2021, there were also significant changes among CADE's main officeholders. Former Superintendent General Mr Alexandre Cordeiro became the President of CADE and former President Mr Alexandre Barreto was named the new Superintendent General, although the appointment has still to be approved by the Senate.

The Tribunal still has one vacant seat. Mr Gustavo Augusto Freitas de Lima was appointed by the President of the Republic, but this has still to be approved by the Senate. In February 2022, Commissioner Paula Farani Silveira's term of office will end and another seat will become vacant.

This reduced quorum negatively impacted the Tribunal's performance in 2021 and is expected to continue to do so in 2022.


1 Alberto Monteiro and Leonardo Maniglia Duarte are partners and Vinicius da Silva Cardoso is a lawyer at Veirano Advogados.

3 Administrative Proceeding No. 08700.001885/2017-35.

4 Administrative Proceeding No. 08700.004548/2019-61.

8 Administrative Proceeding No. 08700.001885/2017-35.

9 Administrative Proceeding No. 08012.001183/2009-08.

10 Press release, Admin. Council for Econ. Def., Cade condemns cartel in the international air and sea freight market (12 May 2021), available at

11 Administrative Proceeding No. 08700.003390/2016-60.

12 Press release, Admin. Council for Econ. Def., CADE condemns cartel in bids to supply PVC pipes and fittings (30 June 2021), available at

13 Administrative Proceeding No. 08700.004235/2021-28.

15 See the interview with the President of CADE on 3 November 2021. Available at:

16 See the interview with the President of CADE on 3 November 2021. Available at:

17 The Regulation contains guidelines on the levels of the settlement sums to be paid by settling parties, and these will vary depending on, inter alia, the level of cooperation and the progress made in the investigation. However, to be able to settle, parties being investigated for cartel behaviour must acknowledge their participation in the violation.

18 Administrative Proceeding No. 08700.005499/2015-51.

19 Press release, Admin. Council for Econ. Def., Cade condemns Tecon Suape for charging THC2 (Feb. 03, 2021), available at

20 Administrative Proceeding No. 08700.005778/2016-03.

21 Press release, Admin. Council for Econ. Def., Cade condemns Rumo-ALL for abuse of dominant position in the logistics market by rail transportation (Nov. 03, 2021), available at

22 Administrative Inquiry No. 08700.004588/2020-47.

23 Press release, Admin. Council for Econ. Def., Cade prevents iFood from entering into new exclusivity contracts with restaurants (Mar. 10, 2021), available at

24 Administrative Inquiry No. 08700.004136/2020-65.

25 Press release, Unilateral conduct can be more harmful than cartel, says Cade's president (7 December 2021), available at

26 Press release, Admin. Council for Econ. Def., Cade and Antaq sign memorandum of understanding in the area of port fee collection (17 June 2021), available at

27 Press release, Admin. Council for Econ. Def., Cade condemns Rumo-ALL for abuse of dominant position in the logistics market by rail transportation (3 November 2021), available at

29 See the interview with the President of CADE on 3 November 2021. Available at:

30 Merger No. 08700.003258/2020-34.

31 Merger No. 08700.000059/2021-55.

32 Administrative Proceeding No. 08700.003307/2020-39.

33 Merger No. 08700.005598/2020-08.

34 Merger No. 08700.003969/2020-17.

35 Merger No. 08700.000726/2021-08.

36 Merger No. 08700.005700/2021-48.

37 Merger No. 08700.000149/2021-46.

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