The Public Competition Enforcement Review: Brazil


Law No. 12,529/2011 (the Brazilian Competition Act) establishes a pre-merger review system, rules for the prosecution and punishment of anticompetitive conducts, and leniency and settlement programmes. The Administrative Council for Economic Defence (CADE) is the Brazilian competition agency in charge of enforcing the Brazilian 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 2020, CADE continued its activities at a pace surprisingly similar to that of preceding years. CADE reviewed several high-profile merger cases in 2020, including cases involving the armoured transportation market, the joint venture between Boeing and Embraer, the acquisition of Twenty-First Century Fox by The Walt Disney Company, and a temporary collaboration agreement between Ambev, BRF, Coca-Cola, Mondelez, Nestlé and Pepsico.

According to CADE's own estimates, 471 concentration acts were analysed in 2020, of which seven were approved with restrictions. The SG declined to review a total of 22 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 concentration act, which requires submission to CADE as per the wording of the Brazilian Competition Act.2

CADE's Administrative Tribunal continued the trend from previous, subjecting mergers to substantial scrutiny and opposition, although no decision was rendered that completely blocked a transaction. The competition analysis in merger control cases has continued to increase in complexity as a result of CADE's accumulated experience and knowledge, and the increasing challenges and contributions by third parties.

On the investigations front, CADE promoted enforcement against unilateral conduct offences. In addition, CADE initiated three new investigations related to unilateral conduct.3

Regarding cartels, CADE's Administrative Tribunal closed a cartel investigation related to the market for passenger transportation in the city of Campinas after recognising that the investigation was initiated based on evidence gathered in an unlawful manner in a criminal proceeding.4

In 2020, CADE executed two leniency agreements.5 The number of new cartel investigations opened amounted to 101.

Finally, the DEE also published nine working papers regarding:

  1. the television market;
  2. Brazilian agricultural inputs;
  3. measuring the benefits of CADE's performance in cases of conduct and merger decisions decided in 2018;
  4. presenting DEE's evolution and accomplishments;
  5. antitrust in the digital market;
  6. the parameters by which penalties are calculated;
  7. 'willingness to pay' model in the market power of health service providers and the influence of the assistance network on the competitive dynamics in the health insurance sector;
  8. review of case law; and
  9. CADE's impact on concentration acts.6


In 2020, the SG continued to clear the backlog of cartel cases initiated in previous years. In this period, CADE's Administrative Tribunal decided 14 cartel cases.7 In four of them (30.7 per cent), CADE did not convict any defendants.8

i Significant cases

In 2020, CADE concluded several administrative proceedings concerning cartels.

In April, CADE approved a cease-and-desist settlement with the construction group Andrade Gutierrez and two of its employees. The settlement was executed as part of an investigation related to Operation Car Wash, which assessed an alleged cartel in the market of engineering services for construction, expansion and renovation of public ports and waterway terminals in Brazil. With the settlement, Andrade Gutierrez and its employees confessed to the wrongful behaviour and pledged to cease their participation in it and effectively cooperate with the investigation. Moreover, the signatories assumed the obligation of making a financial contribution to the Fund for Collective and Diffuse Rights amounting to 8,211,645.78 reais.9

In August, CADE decided to finalise and dismiss a cartel investigation related to the market for passenger transportation in the city of Campinas after recognising that the investigation was initiated based on evidence gathered in an illegal manner in a criminal proceeding.10 CADE is usually reluctant to recognise procedural issues in administrative proceedings but had no other option after the courts declared the evidence collected null and void.11

Also, in August, CADE issued an important decision in the investigation of an alleged international cartel in the market for methionine, recognising that the investigation was time barred due to the interim statute of limitations.12

In 2020, CADE also released a preliminary version of a Guide for Cartel Penalties.13 The document aims to provide guidance on how CADE applies and calculates penalties for cartel practices.14

In total, CADE initiated 76 new anticompetitive investigations in 2020.15

ii Trends, developments and strategies

In 2020, the Administrative Tribunal and the SG executed a total of 17 cease-and-desist settlements for anticompetitive conduct involving several markets, which resulted in 138 million reais in financial compensation being paid by the defendants.16 CADE's Regulation No. 5/2013 on settlements, enacted on 6 March 2013,17 has proved to be an effective tool to end investigations that otherwise could take years to be decided, releasing public resources that could be redirected to other investigations in Brazil.

iii Outlook

In the past few years, CADE has devoted a substantial amount of resources to the investigations and leniency agreements related to Operation Car Wash. This may have had the side effects of further delaying other investigations to develop and of preventing CADE from initiating new ones. In 2020, CADE still had several cartel investigations related to Operation Car Wash, some of which may be decided throughout the next years. This scenario highlights the importance of boosting CADE's human and financial resources, as CADE has historically been understaffed. Despite the agency's 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.

Antitrust: restrictive agreements and dominance

i Significant cases

In 2020, CADE's Administrative Tribunal ruled on three cases related to unilateral conduct.

In January, CADE's Administrative Tribunal decided to investigate Gol and Latam's participation in Avianca's judicial recovery. DEE raised concerns that the judicial recovery plan was being designed in a way that only Latam and Gol – Brazil's two biggest airlines – could have interest in buying Avianca's slots.18 The investigation is still ongoing.

In February, CADE also investigated an antitrust violation by the Union of Rio de Janeiro's Gyms and the Union of Physical Education professionals.19 According to complainants Smartfit and Self It, the unions used their by-laws to regulate the gym market in Rio de Janeiro, aiming to harm low-cost gyms. The CADE Tribunal understood that some of the clauses of the collective agreement between the gyms and the unions could affect small gyms and raise entry barriers. As a provisional remedy, the Tribunal ordered the unions to cease enforcing their by-laws while the merits of the case are assessed.20

CADE also initiated an administrative proceeding against Bayer and Monsanto for alleged abusive conduct in the seed and biotechnology market. According to the CADE General-Superintendence, the companies' loyalty program, minimum purchase requirements, and other commercial practices could foreclose related markets.21

The Superintendent General opened a preparatory procedure to investigate possible price abuses in products related to covid-19. CADE issued requests for information to approximately 80 companies in the health industry (such as hospitals, pharmacies and drug manufacturers) to gather information on their sales between November 2019 and March 2020.22 In addition to the official investigation initiated by the Superintendent General, CADE also received a complaint from the Brazilian Association of Dialysis and Transplantation Centers (ABCDT),23 which stated that there was an alleged increase of over 500 per cent in the price of hand sanitisers and surgical masks after the start of the pandemic.24 CADE also imposed a fine of 200,000 reais on the Federal Medicine Council (CFM) and on the Regional Council of Medicine of São Paulo (Cremesp) for preventing healthcare professionals and establishments from accepting discount cards for medical appointments.25

CADE imposed a 8 million reais fine on Positron, an automotive alarm manufacturer, after concluding that the company executed agreements with exclusivity provisions with distributors that represented 57 per cent of the total sales in the market for automotive alarms.26 The CADE Tribunal ordered Positron to remove the exclusivity clauses from all commercial agreements related to the affected market.27

CADE's Superintendent General recommended the conviction of GRU Airport and airplane fuel distributors for discrimination in the market of kerosene for aviation.28 The companies were accused of establishing anticompetitive clauses in an agreement executed in 2013. These clauses had foreseen that the entry of another company in the shared based of GRU Airport and the fuel distributors involved would depend on its pool participants' approval. The Superintendent General understood that this provision constituted an artificial barrier to the entry of other competing distributors in the GRU Airport.29

CADE also executed an important cease-and-desist settlement the financial services market.30 The settlement was proposed by Bradesco over the administrative proceeding that investigated anticompetitive practices against the fintech GuiaBolso. During the investigation, CADE discovered that GuiaBolso's customers – who are clients of other financial institutions – authorise access to their banking information by entering their respective passwords on the application. Bradesco clients, on the other hand, were not able to enter their data directly on the platform because the bank established an additional random password to access their checking accounts. For CADE's Superintendent General, the behaviour of Bradesco would restrict fintech services that depend on the banking data of its clients, harming free initiative and free competition. Bradesco submitted a settlement proposal to address these issues. After analysing it, CADE's Administrative Tribunal decided the agreement submitted by Bradesco resolved the identified problems, since it favoured GuiaBolso on the data portability of the bank customers. Therefore, the settlement establishes opportunities for better services, price discounts and an increase in the competitiveness of the financial services market. The bank committed to ceasing the investigated practices and to pay a financial contribution of 23.8 million reais.31

CADE's Superintendent General initiated an administrative investigation to assess evidence of possible anticompetitive conduct committed by Grupo Globo in contracts signed with advertising agencies.32 CADE has adopted a provisional remedy in this case to prevent losses to competition. The alleged practices are related to 'incentive plans' established by Grupo Globo for the agencies as a way of payment (e.g., the bonus per volume). In the case of the bonus per volume, according to the investigation, the bonus could be considered a discount programme rewarding the volume of investments, loyalty strategies and a minimum acquisition volume.33

Furthermore, CADE initiated an investigation against the hemotherapy institute of the State of Pará (Hemobanco) in Curitiba.34 During the investigations, CADE adopted a provisional remedy to prevent Hemobanco from executing new exclusive agreements with regional hospitals for advance payments for hemotherapy services until the investigation conducted by CADE's Superintendent General is concluded.35

ii Trends, developments and strategies

CADE's enforcement priorities were 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 on this policy and therefore more enforcement. Although there was an increase in the level of enforcement against unilateral conduct, CADE still allocates more resources to fighting cartels, which contributes to delays in investigations on unilateral conduct and also to less enforcement in this area of antitrust. In 2020, CADE initiated 30 new investigations on unilateral conduct.36

iii Outlook

It will be important to track how CADE's efforts related to unilateral acts unfold in 2021 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 financial services industry, CADE executed a cease-and-desist settlement in July 2020 that was proposed by financial institution Bradesco in the administrative proceeding investigating anticompetitive practices against the fintech GuiaBolso.

As also mentioned in Section III, in the communications industry, CADE's Superintendent General initiated an administrative investigation to assess evidence of possible anticompetitive conduct by communications conglomerate Grupo Globo in contracts signed with advertising agencies.37 CADE adopted a provisional remedy in this case to prevent harm to competition.

ii Trends, developments and strategies

The Brazilian 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 challenges that the peculiarities of these markets present. Although digital markets are not regulated by a general law, some players in this market may have activities in regulated industries.

iii Outlook

Although the level of activity in the area of regulated markets was not significant in 2020, 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 2021, CADE will review the joint acquisition of Oi's mobile services assets by mobile operators Claro, TIM and Vivo in the telecoms sector. This is expected to be a relevant case in the telecom sector that will require competition approval by CADE and regulatory approval by ANATEL, the telecoms regulator in Brazil.

Merger review

CADE continues to clear merger filings efficiently, in spite of challenges faced as a result of covid-19. Simple cases eligible for the fast-track procedure have consistently been cleared in an average of 29.5 days, while more complex cases have taken an average of 104.1 days to be decided.38

In 2020, 471 concentration acts were submitted for CADE's review and it rendered decisions in 454 cases. The vast majority (423 out of 454) were approved unconditionally, and only seven were approved subject to remedies. The other 24 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 2020, including cases involving the armoured transportation market, the joint venture between Boeing and Embraer, the acquisition of Twenty-First Century Fox by The Walt Disney Company and a temporary collaboration agreement between Ambev, BRF, Coca-Cola, Mondelez, Nestlé and Pepsico.

In February, CADE reviewed the acquisition of Tecnoguarda's assets by Brink's and concluded that this transaction, along with a series of other acquisitions by the largest armoured transportation companies in Brazil, had led to an alarming concentration in this market in the country.39 For this reason, CADE approved the acquisition conditional on the execution of a merger control agreement with restricting Brink's' ability to enact transactions that increase concentration for the next five years.40 Although the transaction only increased concentration in the state of Mato Grosso, CADE's remedy affected future acquisitions in all states where Brink's has activities.

In December 2019, CADE imposed a similar remedy in the same market, this time on company Prosegur, in relation to a transaction through which it acquired Transvip. CADE also initiated an investigation in previous acquisitions of competitors by Prosegur that had not been submitted to CADE. In one of these cases, CADE concluded that the transaction should have been submitted for review, even though it did not meet the legal thresholds. The transaction was ultimately submitted to CADE and approved following the execution of a merger control agreement on 23 December 2020.

Brink's' and Prosegur's agreements reinforce a trend in Brazil that started when CADE identified that certain companies were gaining a significant market share through a series of acquisitions of small players that did not meet the legal threshold for mandatory antitrust review and did not require merger filings ('cherry picking acquisitions'). In all of these cases, CADE implicitly sent out a message to the market signalling that companies must be aware that even transactions that do not trigger a merger filing may be subject to intervention if they are able to result in significant concentrations.

In this regard, it is worth pointing out that the Brazilian Competition Act provides that CADE may determine that the parties to a transaction that does not meet the legal threshold submit the case for CADE's review in up to a year from the closing of the transaction.

In March, CADE approved the Boeing/Embraer merger without restrictions. After the approval decision was issued, the Federal Prosecution Office (MPF) presented an appeal against the decision to CADE; however, CADE decided that the MPF did not have standing to present an appeal against a decision in a merger approval decision and, therefore, this appeal was dismissed and CADE's decision prevailed.41

CADE also reviewed the Ultra Som and GSFRP merger.42 The acquisition was approved in 2019, but in its decision CADE considered that the parties provided misleading information during its first analysis of the merger. CADE and the parties signed a merger control agreement whereby the parties recognised their fault and agreed to pay a 2 million reais fine.

In May, CADE reviewed its decision in the Disney/Fox merger.43 Having approved the transaction subject to the sale of Fox's pay-TV sports channel and other behavioural remedies in 2019, CADE eliminated the obligation to divest due to the lack of interested buyers and the effects of the covid-19 pandemic, maintaining only the behavioural remedies. Disney agreed not to eliminate the purchased channels for the next three years or at least until the end of all of Fox's broadcasting contracts. The company must also maintain services levels at Fox Sports' main channel, including the broadcast of the Copa Libertadores da América, until January 2022. If Disney decides to terminate the broadcasting, it must return the 'Fox Sports' brand.44

In June, CADE issued a controversial interlocutory decision to suspend the partnership between Facebook and Cielo for electronic payments through WhatsApp.45 According to the Superintendent General, because Cielo has a high market share as an acquirer in the payment methods market and WhatsApp has millions of users in Brazil, the agreement could raise competition concerns and, thus, should have been reviewed by the antitrust authorities before implementation.46 CADE revoked the suspension after the parties presented additional information regarding the partnership.47 The case is still under review by CADE,48 even though many experts consider that the partnership did not trigger a mandatory merger notification to CADE.

In November, CADE approved the acquisition of Nike do Brasil by SBF Group/Centauro with restrictions.49 The transaction was approved subject to a merger control agreement to ensure equal treatment in the distribution of Nike products. The agreement establishes the division of the business units of both companies, which includes data information and documents. Nike must also maintain a structure (named CASA) that will implement mechanisms to supervise SBF activities. Besides that, the merger control agreement also foresees that SBF will have an independent reporting channel to third parties and collaborators to report potential discriminatory or anticompetitive practices, as well as access to competitively sensitive information. The agreed obligations will be supervised by an independent external monitor (trustee) and are valid for a three-year term that begins on the date of its approval.50

In December, CADE approved the transaction between Fiat Chrysler and Peugeot and rejected challenges to the transaction.51 CADE concluded that the transaction implies some horizontal overlaps and vertical integrations that do not raise any competitive concern. Therefore, it approved the merger without restrictions.52

Gun jumping

In October 2020, CADE reviewed the Hidracor/Arco Íris Tintas merger and Light Energia/CG I FIP merger. In both cases, the merging parties closed the transactions before obtaining CADE's approval. Hidracor and Arco Íris Tintas signed a merger control agreement with CADE whereby the parties recognised their fault and agreed to pay a fine of 193,000 reais. The same happened to Light Energia and CG I FIP, which agreed to pay a 1 million reais fine to CADE.53

ii Trends, developments and strategies

The new trends in merger review in 2020 are as follows:

As CADE's merger review grows more sophisticated, the number of merger challenges – and their relevance to the result of merger cases – is on the rise.

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.54

CADE is also expected to be attentive to markets where a dominant company makes various acquisitions of smaller competitors that, although they may not present risks in specific cases, may result in undesirable levels of market concentration.

The number of requests by CADE's Tribunal to review merger cases approved by the Superintendent General has increased recently, which indicate that the current composition of the Tribunal seems to be less aligned with the Superintendent General. The number of split decisions by the Tribunal has also increased, indicating less alignment between the members of the Tribunal in its current composition than previously.

iii Outlook

In 2020, CADE continued to efficiently examine simple more complex transactions despite the difficulties of having limited staff. The improvement of the Brazilian merger control system continues to be on CADE's agenda.


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 2020 and that have been under investigation for several 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 that Brazil continues to be a dynamic jurisdiction for competition law. The competition law framework, which has been in place for almost nine years, has proved to be reasonably successful. However, it is natural that new challenges will appear as it develops. One significant concern is that CADE may be overinfluenced by political actors, particularly given that several cartel investigations derived from Operation Car Wash affect several high-level Brazilian authorities and politicians. In 2020, CADE was also affected by the covid-19 crisis, which presented many challenges to CADE and the business community. However, it dealt well with these by rapidly adapting to virtual meetings and judgment sessions. At the time of writing, CADE is expected to gradually return to its normal activities.

CADE has already developed solid institutional foundations inspired by the best international practices in competition law enforcement and has continuously improved. Therefore, it is well positioned to deal successfully with these challenges, given the difficulties that it has already overcome and considering the overall evolution of competition law and policy in Brazil. The mandates of the current president of CADE, Alexandre Barreto, and of commissioner Mauricio Bandeira Maia will end in June 2021 and the mandate of the current Superintendent General, Alexandre Cordeiro, will end in October 2021. Therefore, there will be changes in key positions at CADE in 2021.


1 Mariana Villela, Leonardo Maniglia Duarte and Vinicius da Silva Cardoso are lawyers at Veirano Advogados.

2 'CADE em Números', available at

4 Administrative Proceeding No. 08012.012165/2011-68.

8 'CADE em Números', available at

10 Administrative Proceeding No. 08012.012165/2011-68.

11 Judicial Proceeding No. 1020940-20.2020.8.26.0114.

12 Administrative Proceeding No. 08012.009581/2010-06.

13 Press Release, Admin. Council for Econ. Def., CADE releases a Preliminary version of the Guide for Cartel Penalties (July 7, 2020), available at

14 Id.

17 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.

18 Administrative Inquiry No. 08700.002069/2019-19.

19 Administrative Inquiry No. 08700.005683/2019-24.

20 Press Release, Admin. Council for Econ. Def., CADE implements restrictive measures against unions of academies and physical education professionals in Rio de Janeiro (June 23, 2020), available at

21 Administrative Proceeding No. 08700.000270/2018-72.

22 Preparatory Proceeding No. 08700.001354/2020-48.

23 Conduct Complaint No. 08700.001414 / 2020-22.

24 Press Release, Admin. Council for Econ. Def., CADE starts data collection to support research in the medical-pharmaceutical sector (Aug. 12, 2020), available at

25 Press Release, Admin. Council for Econ. Def., CADE imposes fines on health entities for preventing the use of discount cards in appointments (June 3, 2020), available at

26 Administrative Proceeding No. 08012.005009/2010-60.

27 Press Release, Admin. Council for Econ. Def., CADE fines Positron BRL 8 million for anti-competitive practice (Aug. 12, 2020), available at

28 Administrative Proceeding No. 08700.001831/2014-27.

29 Press Release, Admin. Council for Econ. Def., Superintendence recommends condemnation of GRU Airport and fuel distributors for discrimination in the aviation kerosene market (Nov. 11, 2020), available at

30 Administrative Proceeding No. 08700.004201/2018-38.

31 Press Release, Admin. Council for Econ. Def., Bradesco enters into an agreement with CADE regarding an investigation of anticompetitive practice against GuiaBolso (Oct. 07, 2020), available at

32 Administrative Inquiry No. 08700.000529/2020-08.

33 Press Release, Admin. Council for Econ. Def., CADE imposes a preventive measure against Globo Group in investigation of the advertising market (Dez. 12, 2020), available at

34 Voluntary Appeal No. 08700.003994/2020-92.

35 Press Release, Admin. Council for Econ. Def., CADE imposes a preventive measure against Hemobanco in Curitiba, Paraná (Dez. 9, 2020), available at

37 Administrative Inquiry No. 08700.000529/2020-08.

39 Concentration Act No. 08700.001692/2019-46.

40 Press Release, Admin. Council for Econ. Def., Brink's is not allowed to purchase companies in the cash transportation market for three years (Feb. 19, 2020), available at

41 Concentration Act No. 08700.003896/2019-11.

42 Concentration Act. No. 08700.002566/2019-17.

43 Concentration Act No. 08700.004494/2018-53.

44 Press Release, Admin. Council for Econ. Def., CADE approves Disney's purchase of FOX with restrictions (May 5, 2020), available at

45 Proceeding No. 08700.002871/2020-34.

46 Press Release, Admin. Council for Econ. Def., CADE suspended the merger between Facebook and Cielo which aims to implement payments via WhatsApp (June 23, 2020), available at

47 Press Release, Admin. Council for Econ. Def., CADE repeal suspension of partnership between Facebook and Cielo to implement payments via WhatsApp (June 30, 2020), available at

48 Proceeding No. 08700.002871/2020-34.

49 Concentration Act No. 08700.000627/2020-37.

50 Press Release, Admin. Council for Econ. Def., CADE approves tha acquisition of Nike do Brasil by entauro with restrictions (Nov. 4, 2020), available at

51 Concentration Act No. 08700.002193/2020-18.

52 Press Release, Admin. Council for Econ. Def., CADE definitely approves the operation involving Fiat Chrysler and Peugeot (Dec. 9, 2020), available at

53 Concentration Act. No. 08700.005455/2019-54.

54 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.

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