Contributed By Brolio Gonçalves Advogados
The most relevant basis for challenging cartel behaviour and its effects in Brazil is Law No 12,529/2011 (the “Brazilian Antitrust Law”), which provides for the prevention and sanctioning of violations against the economic order. With regard to the criminal perspective, the legal basis for challenging cartel behaviour is Laws No 8,137/90 and 8,666/93, and Decree No 2,848/40 (the “Brazilian Criminal Code”).
The Administrative Council of Economic Defence (CADE), a federal administrative body, is the main authority in the Brazilian jurisdiction regarding enforcement against companies and individuals involved in cartels. Cartel behaviour can also result in civil and criminal liability. The Brazilian Criminal Code sets forth punishment and the Public Prosecution Office is responsible for investigating and criminally prosecuting individuals for cartel behaviour.
There is no criminal liability for companies for this type of wrongdoing.
The parameters for the configuration of cartel behaviour in the criminal sphere are slightly different from the ones applied by CADE in the administrative sphere. CADE and criminal courts are completely independent in their assessment of cartel violations.
Regarding civil litigation to pursue damages, both the Public Prosecution Office and consumer associations are competent to propose collective lawsuits to repair damages caused to consumers (both individual and collective damages).
It is possible for those who have been affected by cartel conducts (companies and individuals) to directly demand or indemnification in the amount of the suffered damage in a private lawsuit. The grounds for this kind of lawsuit are still uncertain, considering that some aspects – such as the applicable statute of limitations, access to evidence (considering confidentiality aspects), methods for calculation of the damages, joint liability of the cartel perpetrators, risk of reversal of the administrative decision, high costs and terms of the judicial proceedings – are still in dispute. There is a bill (Bill of Law No 11,275/2018) currently under analysis by the House of Representatives that has the objective of establishing clearer parameters and rules in connection to damages repair, including a clear initial term for the statute of limitation, the possibility of double damages for defendants that have not executed leniency or settlement agreements, and a mandatory arbitration clause for defendants that signed leniency or settlement agreements.
Cartel conduct is defined in the Brazilian Antitrust Law, besides Laws No 8,137/90 and 8,666/93, and complemented by CADE’s guidelines, administrative and judicial precedents. According to Article 36 of the Brazilian Antitrust Law, the following conducts can be classified as a cartel: to agree, to manipulate or to adjust with a competitor, in any form, (i) the prices of goods or services; (ii) the production or commercialisation of a restricted or limited quantity of goods or provision of a restricted or limited number, volume or frequency of services; (iii) a segmentation of an actual or potential market for goods or services, including the division of customers, suppliers, areas or periods; and (iv) prices, conditions, advantages in public bids, or the decision not to participate in order to favour a competitor. It is important to note that the list of conducts included in the Brazilian Antitrust Law is illustrative, thus other types of collusion not envisioned can be deemed as a cartel, according to the authority’s understanding. There are no exemptions. The provisions of the Brazilian Antitrust Law encompass all industries, sectors and activities. There are a few types of co-ordination among competitors that do not violate the law, such as joint ventures.
There are ongoing administrative proceedings in which CADE has signalled a different treatment to pure exchanges of sensitive information.
In the case of cartel behaviour that also consists of a criminal violation, the applicable statute of limitation is 12 years, according to the Brazilian Criminal Code (Article 109) and precedents of the Supreme Court. In the case of administrative violations that do not constitute a criminal infraction, the applicable statute of limitation is five years, as set forth in Article 1 of Law No 9,873/99. The term of statute of limitation is not initiated until the conducts have ceased by the parties.
If the conduct occurred in a foreign jurisdiction, in order to reach enforcement in Brazil, CADE needs to prove that the conduct was able to produce effects in the Brazilian market. In recent years, CADE has been using the theory of indirect/virtual damages to convict cartel behaviour that took place abroad.
According to the Brazilian Criminal Code and Decree No 4,657/42, principles of comity, such as the effectiveness of certain acts and judicial decisions from another country in Brazil (as long as they do not offend national sovereignty), are adopted in the Brazilian jurisdiction. The application of principles of comity is usually mandatory in criminal cases. In the administrative sphere, although there is plenty of international co-operation in connection to antitrust enforcement in Brazil, there are no decisions applying such principles.
All investigations in the administrative sphere are initiated by CADE’s General Superintendence. Investigations are initiated ex officio, based on evidence collected in the authorities’ own investigations or provided by means of a leniency agreement, or based on a complaint made by a third party (market player or another authority). Leniency agreements have been the most important tool for unravelling collusive behaviour in Brazil in recent years.
Once CADE’s General Superintendence has collected sufficient evidence, a formal proceeding is initiated. There are different types of proceedings that can be opened according to how robust the evidence is. CADE can resort to different tools to strengthen the evidentiary framework, such as dawn raids (bounded to judicial warrants), testimonies, questionnaires sent to other authorities or participants in the industry, settlement agreements and economic analysis. The defendants are notified to present written arguments, and then follow the formal instruction of the case, during which the authorities and the defendants are able to produce depositions and testimonies, documents and economic evidence. When CADE’s General Superintendence understands that all the evidence available was collected, it issues its final opinion regarding the case and sends it for the appreciation of CADE’s Tribunal. The Tribunal is not limited by the findings and conclusions of CADE’s General Superintendence. The Reporting Commissioner can collect further evidence. It is the Tribunal’s role to issue the ultimate decision regarding the case. If the Tribunal decides to convict the defendants, it has to define all the sanctions and penalties that shall be imposed upon them.
Dawn raids are possible according the Brazilian Antitrust Law and Criminal Procedure Code. Dawn raids depend on a judicial warrant, which would specify the scope of the search and seizure (objects, papers of any nature, business books, computers and magnetic files of a company or individual). The order shall also describe the facility in which the dawn raid shall be conducted, the individuals who are investigated, and the reasons and objectives of the dawn raid operation on the specific case. The measure must be carried out in strict accordance with the judicial authorisation.
Dawn raids are executed by judicial and police authorities. Outside and in-house counsels can accompany the agents and guarantee that a meticulous report about the documents and objects seized is prepared and that the limits of the judicial warrant are not being extrapolated. The company or individual who is subjected to a dawn raid cannot resist the measure. The use of official force to break into the place where the assets are presumed to be is usually authorised by the order.
Dawn raids can only be conducted with a judicial warrant. Such warrant must be detailed, describing the exact scope of the operation. Corporate, individual and portable devices can be seized or information stored on servers or devices can be copied on site.
Conducts that seek to destroy, suppress, or hide public or private documents are crimes according to the Brazilian Criminal Code (Article 305). Within the scope of dawn raids, there are specific procedures that are adopted to prevent the spoliation of information relevant to the investigation. First, the procedures to decide on and authorise a dawn raid measure are conducted in secrecy, to prevent the investigated subject from having the opportunity to hide or destroy relevant evidence. The conducting of a dawn raid for the seizure of objects and documents also involves making a detailed list of the seized goods, and the packages of the seized goods can only be opened in due time in the presence of witnesses, when the analyses and copies of the seized goods will be made. Seizure of the documents is always preferred to copying them because, in addition to the time needed for copying the material in loco, there is the possibility of errors in the copy, while the possession of the original document allows its referral to an expert in the event of disputes regarding its authenticity.
Members of the investigated company can refuse to be interviewed or to answer questions during the execution of a dawn raid. A specific notification is required for this purpose. CADE’s General Superintendence may request, during the normal course of the administrative proceeding, oral clarification from any person involved in the cases under investigation. The unjustified absence of the person summoned may be penalised by a fine, according to Article 41 of the Brazilian Antitrust Law, and the individual might be prosecuted for disobedience (according to Article 330 of the Brazilian Criminal Code). After the dawn raid, the physical documents are copied and returned to the companies. Two copies of the electronic materials are produced: one to be returned to the company, and another for the purposes of instruction of the case by CADE’s General Superintendence. The original materials, if the judicial warrant that authorised the dawn raid operations allows so, are sealed and stored at CADE's headquarters until the end of the administrative proceeding.
Defendants in administrative sanctioning proceedings and criminal investigations have the right to be represented by an attorney at law, who can be present during the interviews with the authority. When individuals are summoned to provide information to CADE, they can be accompanied by their lawyers (which is advisable); nevertheless, they have the obligation to personally answer the questions. The interviewee has the right to remain silent and such a right will not be used against him. During the interview, the counsel can intervene to prevent any abuses.
There is no specific requirement for separate counsels. Such decision depends on the existence of conflict of interest among the parties.
The principal initial steps that defence counsel should undertake during the initial phase of an enforcement effort is to make a thorough assessment of the evidence that sustains the allegations against the client. After that, it would be advisable for the counsel to interview the client regarding the facts that are being investigated. Having this in mind, the counsel may be able to define if the best strategy is to present a defence on the case files or to pursue a settlement agreement.
CADE can subpoena any individuals to provide oral clarification on cases during an investigation. Unjustified absence of the person summoned to provide clarifications may be penalised. The subpoenaed person is under no obligation to answer all questions asked, as a consequence of the right to remain silent. CADE can also demand written information from other authorities and agents in the industry that is being investigated.
The Brazilian Antitrust Law and Brazilian Criminal Code are broad in terms of what evidence can be produced in a proceeding, therefore there are many tools that authorities can use to improve the evidentiary framework. CADE commonly obtains the documents necessary to clarify cartel cases through agreements executed with market players accused of anti-competitive conducts (leniency agreements or settlement agreements), who must co-operate with the investigation and deliver to CADE information that contributes to proving the existence of the illegal conducts. CADE can also send official letters to third parties, subpoena any individuals to provide oral clarifications, promote dawn raid operations and obtain wiretapping (both bounded to judicial warrants), and demand economic analysis, among others.
In Brazil, the burden of presenting evidence of the authorship and materiality of the illegal conduct rests with CADE, and it is up to the company or person sued to produce only the evidence to demonstrate what it claims. There will only be an obligation to provide evidence to CADE in the event of a leniency agreement or settlement agreement, situations in which one must fully co-operate with the investigations.
There is no distinction between information that the company has stored in the cloud or physically in Brazilian territory or elsewhere. Generally, evidence of international cartels is obtained from cases conducted in other jurisdictions or by mutual legal assistance treaties.
All attorney-client communications are protected by legal privilege as granted by Brazilian Constitution, which ensures inviolable secrecy as unequivocal support for the full exercise of the right of defence. This privilege is extended to counsels outside the Brazilian jurisdiction and there are no distinctions between in-house counsels and outside counsels.
The privilege against self-incrimination (the defendants have the right to remain silent or even to lie) is recognised in Brazil. Besides, the Federal Constitution rules about the exercise of full defence (the accused parties have the right to use all legal procedures and proof in order to seek their defence), the innocence assumption (the parties are innocent until a condemnatory decision become final and unappealable), and the adversary system (the parties must have the opportunity to confront any person or contradict any evidence that is produced during the proceeding), among others.
Unjustified non-compliance with information requirements made by public authorities in Brazil can lead to the imposition of fines and prosecution for the crime of disobedience. In sanctioning proceedings, the defendants have a limited obligation of co-operation since they have the right to a full defence, except for the companies that execute leniency or settlement agreements with CADE. These types of agreement encompass a broad obligation of co-operation. It is not unusual for defendants to refuse to answer official requests for information, especially in criminal investigations.
It is a right of targets of enforcement actions and also third parties to protect confidential or proprietary information. These rights are granted by Brazilian Constitution.
In Brazil, the right to a full defence must be guaranteed in any administrative and criminal proceeding, which means that lawyers can intervene in a cartel investigation at any stage of the investigative proceedings. The lawyer can do this in the context of the administrative inquiry or a preparatory administrative investigation procedure, providing information on the facts investigated, or in administrative proceedings, requiring the production of evidence and formally presenting documents or defence arguments. Although there is a specific term for the presentation of the formal defence, documents and written information can be filed at any time during the proceeding. Nevertheless, the production of other kinds of evidence, such as testimonies and expert examinations, is limited to the discovery phase.
There is a leniency programme in force in the Brazilian jurisdiction. It is regulated by the Brazilian Antitrust Law, CADE’s Internal Regulations and in specific guidelines issued by CADE. According to such regulations, companies and individuals involved in cartel behaviour or another antitrust conspiracy can obtain full or partial immunity in administrative and criminal spheres. In order to be granted immunity, the parties must report and confess their participation in the conduct, commit to cease the illegal behaviour, and co-operate with the investigations by submitting information and relevant documents in their possession. The leniency agreement is limited to the first in line, independently of its role in the illegal behaviour. In Brazil, leniency is currently available even for the ringleader. If the leniency agreement is available, the company or individual that approaches CADE will get a marker to guarantee its place even though it has not already finished internal investigations, so it does not have the obligation to present all the evidence of the concerned facts right away. If the marker is given, the party, in order to start the negotiations, shall comply with the terms established by CADE to present the necessary documents.
If CADE, when approached by a potential applicant, already has knowledge of the behaviour, but does not have enough evidence to ensure the conviction of the involved parties, it can execute a partial leniency agreement (that grants a discount in the expected fine and does not necessarily guarantee criminal immunity).
There is also a possibility of executing a “leniency plus agreement” that involves the reduction by one to two thirds of the expected penalty for a party that contributes in an investigation that already has a leniency agreement and provides information regarding other conducts that CADE has no knowledge about. Full leniency in the last case guarantees a reduction of the penalties in the former case.
Regarding CADE's records enforcement, it is important to highlight the “Carwash” case, which increased the number of leniency agreements. Leniency agreements are an important tool in cartel enforcement in Brazil. So far, all executed agreements have been considered complied with by CADE.
CADE can subpoena any individuals, including companies’ employees, to clarify any facts under investigation or to present documents. The subpoena must be made by means of a specific document that must indicate when and where the information should be provided and the applicable punishments in the event of non-compliance. There is no specific limitation on the exercise of this competence. Unjustified non-compliance with a CADE subpoena may result in fines and prosecution for the crime of disobedience.
CADE can subpoena any individual to present documents, objects or information about the investigated facts, as described in 3.1 Obtaining Information Directly from Employees. CADE may pursue judicial authorisation for a dawn raid in the target company.
There is no impediment for a foreign company or individual to be subpoenaed or served to provide information or to present its defence in an administrative proceeding initiated by CADE, as described in 1.6 Extent of Jurisdiction. It is common that, in investigations of international cartels, CADE uses evidences produced in proceedings conducted by foreign authorities and shared according to specific treaties executed with them. CADE commonly uses international co-operation in order to summon the parties.
There are a lot of co-operation agreements among agencies in the Brazilian jurisdiction; for example, between CADE and the Public Prosecution Office. Such types of co-operation have the potential to enhance the evidentiary framework and guarantee a processing of the concerned information in a timely manner. The exchange of information must respect secrecy of information and must not endanger investigations that are under way.
There are agreements between CADE and foreign antitrust agencies that provide for the co-operation in investigations of international cartels. This kind of co-operation can unveil cartel conducts that would not be brought up without it; for example, several international cartels were discovered and led to investigations in Brazil through investigations initiated in foreign jurisdictions.
Criminal cases are litigated in federal or state courts and evidence is presented to a judge by the Public Prosecution Office (Federal or State Offices). The public prosecutor usually interviews parties that executed a leniency agreement with CADE.
The first step is to file a lawsuit presenting the case and the evidence to demonstrate the civil damage or violated right. It should be presented to a judge in a court of justice. The defendants have the right to access information as long as it does not cause damage to investigations that are under way and that are not conducted under secrecy. It is possible to have access to confidential information if the judge decides in this sense.
Enforcement actions involving cartel behaviour generally are brought up against all the parties involved. It is also possible to segregate the proceeding in especial circumstances, such as in cases in which CADE has difficulties in summoning all the parties or when some of the parties involved in the conducts are discovered at an advanced stage of the proceeding. In this case, instead of returning to the initial phase of the investigation, CADE usually opens a new case against these specific parties.
The burden of proof remains over CADE in administrative cases or the Public Prosecution Office in criminal ones. Authorities must demonstrate that parties are implicated in the investigated behaviour and to what extent. If it is not possible to prove the parties’ involvement beyond doubt, they must be acquitted. It is important to note that in cartel investigations, CADE does not have the burden of demonstrating the effects of the behaviour, since cartels are considered as a per se antitrust violation. It is enough for the authority to prove that the parties acted in collusion.
In a civil or criminal proceeding, the judge acts as the finder of facts and applies the law to those facts.
It is possible to use evidence produced in another case, including evidence from other jurisdictions, as long as the parties have the opportunity to contradict such evidence and it is in accordance with the Brazilian legislation and does not offend national sovereignty. If evidence has been produced within the scope of a leniency agreement, its sharing depends on the authorisation of the applicant.
The rules of evidence applicable to cartel investigations include the right of the defendants to use all means permitted by law to prove the truth of the facts that they allege. The burden of proof belongs to the authorities, which can use the most diverse means to prove the materiality of the investigated conduct. The accused companies or individuals, in turn, are allowed to employ any legal means to prove their innocence, reserving the right to not produce evidence against themselves.
In cartel cases, economists normally play an important role in examining the structure of the market and in calculating the effects of the collusion, in order to establish damages.
Please refer to 2.12 Attorney-Client Privilege and 2.13 Other Relevant Privileges.
It is possible to have simultaneous enforcement proceedings in different spheres – such as administrative, criminal and civil – because they are independent in Brazil. It is also possible that the same fact is considered to have violated more than one law, resulting in its investigation by different authorities, under distinct perspectives. For example, bid rigging might be investigated as cartel behaviour by CADE and as defrauding public bids by the Public Controlling Office, resulting in potential penalties in both cases.
CADE can impose sanctions directly, including administrative penalties such as fines, prohibition to contract with official financial institutions and to participate in a bidding process, registration of the offender in the National Consumer Protection Register, transfer of corporate control, sale of assets or partial cessation of activity, and compulsory license of intellectual property rights. In the event that such penalties are not voluntarily complied with, CADE can ask a federal court to adopt all necessary measures to guarantee full compliance with the administrative decision.
There is a proceeding to settle with CADE, which is named a settlement agreement, or TCC. The TCC can be proposed both before CADE’s General Superintendence or CADE’s Tribunal. In order to settle, the parties must submit a formal proposal through CADE’s electronic system. The timing of the proposal will determine the place in line, which directly impacts the maximum discounts that can be granted. The proposal is negotiated with a committee that will define the pecuniary contribution and the level of collaboration.
To execute a settlement agreement regarding cartel behaviour, the party must report and confess its participation in the conduct and commit to ceasing the illegal activity. If the proposal is presented before CADE’s General Superintendence, the party also has to co-operate with the investigations by submitting relevant information and documents in its possession. For proposals presented when the case has already been submitted to CADE’s Tribunal, the collaboration part is not mandatory. Such agreements award the party a discount in the expected fine, but no immunity in the criminal sphere. The final proposal shall be homologated by CADE’s Tribunal and the administrative proceeding remains suspended in relation to the beneficiary.
When CADE’s Tribunal finally tries the case, it analyses if all the obligations resulting from the settlement agreement were accomplished. If they were, the case is shelved regarding the beneficiaries, no matter the general outcome of the administrative proceeding. In the criminal sphere, it is also possible to settle, by pleading guilty and co-operating with the authorities.
Once responsibility is established, it may cause collateral effects, since CADE's decision can be considered as a prima facie proof to propose a civil lawsuit or a criminal investigation. Settling with CADE does not avoid such collateral effects, since the settlement agreement does not result in immunities, neither civil nor criminal. The leniency agreement, in its turn, usually guarantees criminal immunity, but does not avoid civil lawsuits.
In Brazil, only individuals can be convicted for cartel behaviour in the criminal sphere. Individuals who are convicted for cartel behaviour can be penalised with imprisonment from two to five years and a fine.
As highlighted in 1.2 Public Enforcement Agencies and Scope of Liabilities, Penalties and Awards, the authority that defines the criminal sanction of the individual convicted is the competent judge, according to the rules of Brazilian criminal procedure. CADE has no jurisdiction over the criminal sphere.
Considering civil aspects, the penalties to companies and individuals involved in the illicit behaviour are related to the reparation of damages. In Brazilian Civil Law, companies and individuals who practice illicit conducts that have caused damages have a duty to repair them. Generally, those companies and individuals are required to pay financial amounts proportional to the extent of the damage to those who have suffered the damage. In Brazil, as a general rule, the amount to repair the damage does not exceed the damage actually suffered, but there are a few exceptions that allow the application of double damages. The competent judge to analyse the damage civil procedure is the person who defines how to repair the damage, to the extent of the damage suffered.
Having an effective compliance programme in place can guarantee up to 5% of the total amount of discounts to be granted in settlement agreements executed with CADE. The programme is analysed in light of the severity of the violation, and its effectiveness is evaluated in order to determine the applicable, if any, discount to be granted.
Companies or individuals convicted for the practice of cartel behaviour may be ordered to repair the damage caused to consumers through collective actions, as described in 5.2 Collective Action.
In Brazil, any administrative decision can be reviewed by a court. In order to do so, the parties need to propose an annulment or rescissory lawsuit seeking the amendment or revocation of the administrative decision. If the first-instance judge maintains the decision, it is possible to appeal to the court. After that, it is possible to appeal to the Superior Tribunal of Justice and to the Supreme Court of Justice. Normally, courts are more open to review procedural errors and are more resistant to discuss aspects of the merits, which are considered CADE’s expertise, but there are judicial decisions reversing CADE’s on the merit.
Both companies and individuals have the right to seek damage reparation in civil lawsuits. The requirements are to prove a causal relationship between the behaviour and the alleged damage. The litigator can bring the action before federal or state courts. The standards are different considering that in private actions the plaintiff must prove that they have suffered damages.
There are collective lawsuits set forth by Brazilian law, similar to class actions. Under Brazilian law, only specific entities defined by law (public prosecutors or representative associations of collective interests) can file them and the collective actions results cannot negatively affect the rights of those who are represented in the process by these entities (so that, if the lawsuit is dismissed, the represented individual can go to court individually to discuss the same subject). In this sense, consumer associations and public interest groups, represented by associations, have legitimacy to propose these actions.
Under Brazilian law, damages arising from indirect purchases and “passing-on” are indemnified. Individuals who claim that they have suffered damages as a result of such practices have the burden of proving them.
As mentioned in 3.12 Rules of Evidence, the parties have the right to use all means permitted by law to prove alleged facts and rights, which also includes evidence from governmental investigations. Ample defence is also guaranteed.
This kind of lawsuit is not very common in Brazil, so there is not sufficient available information. Data of other types of suits indicates that the time elapsed between the inception and the final decision can be up to ten years.
Successful attorneys are compensated in an amount fixed by the judge and according to Article 85 of Law No 13,105/2015 that establishes the legal grounds that should be considered to fix it.
In private civil actions, the rule is that the losing party pays the procedural costs and the attorney compensation amount fixed by the judge as mentioned in 5.6 Compensation of Legal Representatives. During the process, each party shall pay for its own acts and, at the end of the process, the losing party will reimburse the amount to the winner.
In collective actions, unsuccessful claimants are not obliged to pay defence costs or attorneys’ fees, unless it is proven that the plaintiff was acting in bad faith.
Decisions involving private civil litigations are appealable to the court in order to grant a second-instance decision. After that, it is possible to appeal to the Superior Tribunal of Justice and to the Supreme Court of Justice, and the discussion will be restricted to questions regarding legal or Constitutional violations. These reviews are common in the Brazilian jurisdiction and happen in practically every decision issued by the first-instance court.
All the relevant information has been given in the previous sections.
CADE has issued guidelines relating to cartel conducts and enforcement, available at:
Bill of Law No 14,010/2020 provides for the permission of certain kinds of co-operation between competitors to face the challenges imposed by the pandemic without previous clearance by CADE. The bill also suspends the application of other provisions of the Brazilian Antitrust Law, but it does not exempt “crisis cartels” from punishment.
Apart from that, CADE has been working as usual, except for the adoption of home office and virtual meeting tools for meetings and sessions.
The effects of the crisis for competition are not clear yet, so it is difficult to predict what will happen in the aftermath. Nevertheless, it is possible to expect that actions taken by companies during the pandemic may be challenged before CADE and the courts, such as common efforts discussed and adopted by competitors, and participation in public procurement in which certain formalities set forth by the applicable laws have been dismissed.