The competition law and practice in Brazil is governed primarily by Law No. 8.884, of 1994, as amended in 2000 and 2007. The Brazilian Competition Policy System (BCPS) is composed of three agencies - namely, the Secretariat for Economic Monitoring of the Ministry of Finance (SEAE), the Secretariat of Economic Law of the Ministry of Justice (SDE), and the Administrative Council for Economic Defense (CADE). SDE is the chief investigative body in matters related to anticompetitive practices and it also issues non-binding opinions in merger cases. SEAE issues non-binding economic opinion in merger review and it may also issue non-binding opinions related to anticompetitive practices. CADE is the administrative tribunal, composed of seven Commissioners, which makes the final rulings in connection with anticompetitive practices and merger review.

Since 2003, the Brazilian competition authorities are pressing ahead with the work on modernizing competition law and policy.  The focus has been on improving – through better working methods, priority-setting and communication – the effectiveness of our efforts to make markets work better for Brazilian consumers, focusing on anti-cartel enforcement, merger review and competition advocacy.

Anti-Cartel Program. The strategy of focusing the scarce resources on cracking cartels rather than on merger review has been proven successful and there is an increasing number of investigations of anticompetitive practices, leniency applications and dawn raids.  One clear indication that anti-cartel enforcement in Brazil is already effective and well viewed abroad is that in more than one case where there is a leniency in place in other jurisdictions, the parties also presented themselves to the Brazilian authorities and offered to collaborate with the investigation in exchange for lenient treatment. There are a growing number of candidates to the Leniency Program: approximately 10 agreements were signed since 2003, and others are currently being negotiated. As a result, the number of search warrants served has significantly increased: from 2003 to 2005, 11 warrants were served and 2 people were temporarily arrested; in 2006, 19 warrants were served; and from January to November 2007, 84 warrants were served and 30 people were temporarily arrested.

Additionally, the Brazilian Cartel Settlement Program was introduced in May 2007, by an amendment to the Antitrust Law. CADE is the antitrust agency with power to enter into settlements, and SDE may issue a non-binding opinion directed to CADE on whether to settle or not. In September 2007, CADE issued Resolution No. 46/2007, establishing the negotiation rules. This represents a remarkable improvement: early cooperation on the part of the defendants will save public resources, cut down litigation, enable early payment of a significant sum of money and provide expedited treatment and more certainty and transparency to the business community. The possibility of settling a case early on allows SDE to focus on other investigations. Settling will also prove beneficial for the defendant, as it means a more efficient use of resources on the part of the company.

Cartel is also a crime in Brazil (Law No. 8,137/90) and SDE as the chief investigative antitrust authority is increasing cooperation with the Federal Police and Public Prosecutors to ensure that managers and directors of companies that do not come forward and take part in our Leniency Program will face full criminal liability, with jail sentences of maximum five years.

Merger Review. Brazil's antitrust law provides that any transaction that may limit or otherwise restrain competition must be notified in Brazil.  Notification is mandatory if (i) any of the parties to it, including their groups, had at least R$400 million in Brazilian revenues in the last fiscal year, or (ii) the market share of the parties, in the relevant market as defined by the parties themselves, is equal to or in excess of 20%. There is no "de minimis" exception or any other exception (e.g., foreign-to-foreign transactions or transactions that do not involve overlap) to the requirement to notify where the thresholds are met. Please not that significant progress was made in reducing the merger review period with the recent adoption of a number of timesaving measures, such as the introduction of a fast-rack procedure in 2004 and the introduction of Seae – SDE joint review mechanism for complex transactions. In addition, in August 2007, SDE and CADE signed a Cooperation Agreement applicable to transactions recognized at the outset to pose little threat to competition. According to the new procedure, CADE’s Federal Attorney’s Office is exclusively responsible for analyzing the formal aspects of the notification, freeing up resources for SDE to concentrate on the analysis of complex cases and speeding up the merger review process. This is procedure is applicable to more than 70% of the cases filed before the Brazilian authorities.

Advocacy. The BCPS has also engaged in a number of initiatives with the purpose of disseminating the value of competition within the government and throughout the Brazilian civil society. This competition advocacy role has encompassed a variety of chores that included campaigns in the media, publications by competition senior officers, participation in courses and seminars to different audiences, working group discussions with different governmental bodies and the promotion of competition impact assessments of sectoral regulations.

Please find below the available materials in English:

Legislation

  Brazilian Antitrust Law

  Merger Notification Form (CADE’s Resolution n. 15/98)

  Horizontal Merger Guidelines

Cartel Prosecution

  Brazil's Leniency Program

 Brazil's Leniency Policy Interpretation Guidelines

 Model Annotated Leniency Agreement

  Brazil's Cartel Settlement Program

  The Crushed Rock Cartel Case

  Brazil / Canada (English and French)

  Brazil / Chile

  Brazil / United States

 Brazil / Russia

OECD Peer reviews

  2007 Follow up evaluation of the 2005 OECD Peer Review

  2005 OECD Peer Review

  2000 OECD Peer Review

ICN Templates

  2005 ICN Cartel Template

  2002 ICN Merger Template

Annual Reports presented to OECD

  2007 Annual Report

  2006 Annual Report

  2005 Annual Report

  2004 Annual Report

  2003 Annual Report

  2002 Annual Report

  2001 Annual Report

  2000 Annual Report

  1999 Annual Report

  1998 Annual Report

 Innovative ways of detecting cartels: The Brazilian Experience
Event: ICN Cartel Workshop 2008, Lisboa, Portugal
Date: October 2008
Speaker: Ana Paula Martinez

 Brazil's Leniency Program 
Event: Ibero-American Competition Forum, Panama City, Panama
Date: 12 September 2008
Speaker: Paulo Leonardo Casagrande
 
 OECD Latin American Bid Rigging Program with Brazil
Event: Latin American Competition Forum, Panama City, Panama
Date: 11 September 2008
Speaker: Paulo Leonardo Casagrande

 The OECD Latin America Bid rigging Project
Event: International Competition Network Annual Meeting, 2008, Japan
Date: April 2008
Speaker: Ana Paula Martinez

 Administrative and Criminal Anticartel Enforcement in Brazil
Event: Latin American Competition Policy: The Law And Economics of Cartels And Competition Advocacy, Fundação Getúlio Vargas, São Paulo-SP
Date: April 2008
Speaker: Mariana Tavares de Araujo

 Brazil's Leniency Program
Event: Apresentação do Programa de Leniência em Washington-DC, EUA
Date: March 2008
Speakers: Mariana Tavares de Araujo e Ana Paula Martinez

  Brazil: Implementing ICN’s Recommended Practices
Event: ICN Annual Meeting 2007, Rússia
Date: May 2007
Speaker: Ana Paula Martinez

  Leniency & Dawn Raids: The Turning Point in Brazilian Antitrust Law & Policy
Event: 2007 Competition Day, Chile
Date: October 2007
Speaker: Ana Paula Martinez

  Crushed Rock Cartel Case: Lessons Brazil Learned from its first Dawn Raid
Event: ICN Cartel Workshop 2007, El Salvador
Date: October 2007
Speaker: Ana Paula Martinez