- Antitrust Matters
- Antitrust Matters – LATAM special edition – December 2023
- Brazil: Cooperation among international antitrust authorities and the impacts on companies
Brazil: Cooperation among international antitrust authorities and the impacts on companies
Committed to broadly promoting competition and protecting consumer welfare in Brazil, the Brazilian Antitrust Authority (CADE) over the years has been expanding the number of cooperation agreements with other antitrust authorities around the world.1 These agreements are designed to enable the exchange of information,2 experience, and best practices in the enforcement of competition laws. They also imply that multinational companies may face increased scrutiny across multiple jurisdictions.
With its vast land area and strategic geographic location, coupled with a large population and growing consumer potential, Brazil has always attracted significant attention from multinational companies from various sectors. Either by having subsidiaries in Brazil or any type of business in the country,3 they have frequently been subject to CADE's scrutiny.
When merger transactions cover multiple jurisdictions and may have significant implications for competition and consumer welfare, CADE can take measures such as:
- Exchanging market information with other antitrust agencies to check cohesion between the data presented in different jurisdictions;
- Using relevant market definitions from other agencies in cases where CADE has not yet analyzed similar markets;
- Considering the legal analysis behind decisions already issued by other authorities (sometimes expediting the analysis in Brazil);
- Requesting information regarding the economic methodologies that other agencies apply to perform reviews; and/or
- Coordinating remedies.
Examples of how international cooperation has affected CADE’s merger analysis
- Bayer/Monsanto: In 2018, CADE approved this merger with remedies. Its merger analysis benefitted from intense international cooperation with competition authorities from other jurisdictions, including the United States, the European Commission, India, Russia, and South Africa. In total, 29 jurisdictions were notified of the transaction. Cooperation between the competition agencies was only possible thanks to waivers that allowed the agencies involved to discuss common concerns in the design of remedies. This allowed CADE to issue a Merger Control Agreement encompassing structural remedies and complementary behavioral remedies in order to mitigate the competition concerns identified during the investigation.
- AbbVie/Allergan:4 In 2019, CADE only formally started analyzing the merger control procedure involving AbbVie’s acquisition of Allergan after the parties granted a waiver allowing it to contact foreign authorities, specifically the European Commission and the Federal Trade Commission (USA). This enabled CADE to obtain information on how the other agencies analyzed the transaction’s economic effects on the worldwide market for medicine related to uveitis, arthritis, ulcerative colitis, and Crohn's disease treatment.
There is also active cooperation during cross-border competition investigations, which usually is geared towards (i) coordinating the planning and execution of the initial phase of the investigation by the agencies involved, to avoid uncoordinated actions by one agency jeopardizing the effectiveness of another agency’s investigation; (ii) exchanging information regarding ongoing ex officio cartel investigations that can affect multiple jurisdictions at the same time; (iii) incentivizing multiple agencies to open parallel investigations whenever one authority publicizes a new case in the press.
Coordination when obtaining markers5 in several jurisdictions also plays a crucial role in the success of negotiating a leniency agreement for a company that is being investigated for anticompetitive practices through reduced risks and strengthened collaboration with the authorities.
In this context, it is important to highlight that the Brazilian leniency program allows companies and individuals involved in a cartel or other collective anticompetitive conduct to receive full administrative and criminal immunities, which makes CADE’s leniency program one of the most beneficial for companies worldwide.
Examples of how international cooperation has affected CADE’s investigations
- Refrigerator compressors: In 2009, a leniency agreement signed with the former Secretariat of Economic Law resulted in a deepening of an international cartel investigation into refrigerator compressors. Based on evidence brought to CADE by a leniency agreement signed with Tecumseh Group and related individuals, dawn raids were conducted in relevant companies’ offices and their executives’ homes located in Brazil, the United States and Europe. In 2016, CADE fined three companies and three individuals for cartel formation in the international market of hermetic refrigerator compressors, with total fines of BRL21.3 million (the cartel received similar punishments in other jurisdictions, such as Chile). This was one of the first cases decided by CADE in which there was international cooperation for the execution of dawn raids.6
- Underground and submarine cables: In April 2020, CADE fined four companies and three individuals for forming an international cartel, with effects in Brazil, in the underground and submarine cables market. Total fines amounted to BRL20.9 million. CADE's investigation started with a leniency agreement with three companies that acknowledged their participation in the anticompetitive practices and provided documentary evidence related to the cartel’s functioning. According to CADE, the collusion took place by means of periodic contacts through emails and multilateral meetings, where the goal was to share sensitive information, fix prices, divide markets, and allocate clients among competitors. European, Japanese, and South Korean manufacturers participated in the collusive practices, which lasted from 1990 to 2004.
Companies are increasingly subject to the scrutiny of antitrust authorities around the world and must be vigilant in ensuring compliance with antitrust laws across multiple jurisdictions.
DLA Piper and Campos Mello Advogados (CMA) are separate and independent law firms, which work in cooperation with one another. Partners of DLA Piper are not partners of CMA; and CMA partners are not partners of DLA Piper.
1 These include agreements with antitrust authorities in: South Africa, Germany, Argentina, Australia, Canada, Chile, China, Colombia, South Korea, Costa Rica, Egypt, Ecuador, the United States, the Philippines, India, Italy, Japan, Mexico, Paraguay, Peru, Portugal, Russia, Singapore, Turkey, and the EU. Access to their terms can be found in the here
2 Subject to the laws of each jurisdiction protecting confidential information
3 It is important to clarify that sales through exports to Brazil also count as “activities in the country.” The existence of a Brazilian subsidiary is not required for a company to be subject to CADE’s jurisdiction
4 Merger Review Procedure 08700.004187/2019-53
5 In the context of antitrust investigations, requesting a marker is a process by which a company or individual can disclose information to a competition authority about a potential antitrust violation while protecting themselves from immediate prosecution. Typically, requesting a marker involves providing the competition authority with enough information to demonstrate the potential value of cooperation, without disclosing all of the details of the conduct at issue
6 CADE’s press release