Brazil

Introduction

Law No. 12,529/11, which came into effect on 28 May 2012, replacing Law No. 8,884/94, is the current Brazilian Competition Act. The Act introduced several important changes to the Brazilian competition system, including a restructuring of the primary competition authority, the Brazilian Competition Authority (CADE). CADE is composed of the General Superintendence (GS), which is responsible for the investigative phase of both merger cases and administrative procedures initiated to evaluate potential anticompetitive conduct; and the Administrative Tribunal, with six commissioners and a chairperson, which is responsible for final rulings.

The Brazilian Competition Act has empowered CADE with three main functions:

• preventive: analyse and rule on mergers, according to pre-merger control rules;
• repressive: investigate and rule on anticompetitive conduct; and
• educational: instruct society on competition matters.

Under CADE’s repressive function, mechanisms to improve investigation procedures are constantly in development to assist the authorities in combatting anticompetitive conduct and to facilitate investigation procedures. In line with this, CADE provides for the availability of two different settlement agreements to resolve conduct investigations:

• leniency agreements, which are only available for the first party to report an anticompetitive conduct;^[2] and
• cease-and-desist agreements, which are available for parties that took part in anticompetitive conduct already identified by CADE.^[3]

To provide society with an institutional framework and more transparency for future negotiations, in 2016 CADE issued guidelines consolidating best practices and procedures usually adopted during the negotiation of these settlement agreements: CADE’s Antitrust Leniency Programme Guidelines^[4] and CADE’s Cease and Desist Agreement for Cartel Cases Guidelines.^[5]

In 2018, the Peer Reviews of Competition Law and Policy in Brazil, developed by the Organisation for Economic Co-operation and Development (OECD), stated that CADE’s leniency programme ‘has clearly matured over the years and is now considered a central aspect of the Brazilian competition policy, attracting interest from both domestic and international signatory parties’.^[6] CADE’s cease-and-desist agreements, in turn, have been described as ‘a tool to make enforcement more efficient and quicker in order to resolve problems in the market, as well as a tool to uncover other potential cartel cases’, protecting the value of CADE’s leniency programme.^[7]

This chapter provides an overview of the development of settlement agreements in Brazil and discusses: applicable penalties for antitrust conduct in Brazil; leniency agreements; cease-and-desist agreements; confidentiality; and cooperation.

Applicable penalties for anticompetitive conduct in Brazil

Leniency agreements and cease-and-desist agreements may be seen as attractive options for defendants, especially considering that the applicable penalties for anticompetitive conduct are considerably harsh. According to the Brazilian Competition Act,^[8] in the administrative sphere, the following fines can apply to companies or individuals convicted of anticompetitive conduct:

• for companies, a fine equivalent to 0.1 per cent to 20 per cent of the gross revenues registered by the group in the year previous to the initiation of the administrative proceeding, in the line of business in which the violation occurred, which will never be less than the advantage obtained (if it is possible to estimate this value);
• for individuals or legal entities that do not carry out business activities (such as associations), in which case the gross revenue criteria cannot be applied, a fine of 50,000 reais to 2 billion reais; and
• for managers directly or indirectly responsible for the violation committed, if their fault or wilful misconduct is proven, a fine of 1 per cent to 20 per cent of the fine imposed on the company.

In addition to pecuniary fines, other penalties may also be applicable in the administrative sphere, such as requirement to publish the conviction decision in a widely circulated newspaper; prohibition of contracting with financial institutions and participating in public tenders; and requirement to divest certain assets or split up the company.^[9]

Moreover, in Brazil, individuals involved in cartel practices may also be held liable under criminal law (i.e., the Economic Crimes Law^[10] and the Public Procurement Law^[11]), with prison sentences of up to five years applicable.

In the civil sphere, the Brazilian Competition Act also establishes that injured parties may defend their individual or diffuse interests in court by way of measures intended to cease anticompetitive practices and to seek redress for losses and damages suffered.

Leniency agreements

CADE developed its leniency agreement programme as a means of encouraging companies or individuals involved in anticompetitive conduct to collaborate effectively with investigations. The benefit of leniency was initially introduced in Brazil in 2000, by Law No. 10,149/2000, which updated Law No. 8,884/94. The Brazilian Competition Act has adapted the previous leniency programme with the objective of strengthening the activity of combatting antitrust violations, especially cartels, which became a priority for CADE in Brazil in 2003.

Requisites and benefits of a leniency agreement

Leniency agreements are available if the signatory party commits to not only collaborate with the investigation process, by submitting information and documents relevant to the investigation (and that permit the identification of others involved in the conduct), but also to cease – and confess its involvement in – the illegal conduct. In addition, as a requirement for applying for a leniency agreement, the signatory party must be the first party to come forward with information on the conduct. The leniency agreement is an important alternative for parties involved in an anticompetitive conduct, as it provides for both administrative and criminal immunities. It does not, however, exempt signatory parties from being held liable for antitrust damages in a civil action.

In terms of benefits provided by the agreement in the administrative sphere, the signatory party will either be granted full immunity (avoid fines completely) or partial immunity (be granted a reduction of one-third to two-thirds of the applicable fine), depending on the conditions in which the agreement was proposed.^[12] Essentially, if the GS – the competent authority to conclude antitrust leniency agreements – has no prior knowledge of the conduct at the time the agreement is proposed, the signatory party will receive, upon fulfilling all conditions agreed upon by the leniency agreement, the benefit of full immunity by the public administration. If the GS has prior knowledge of the conduct at the time the agreement is proposed, but does not have enough evidence to guarantee a conviction against the parties, the first party to report the violation may receive a leniency agreement with partial benefits. In this case, the signatory party will receive, upon fulfilling all conditions agreed upon by the leniency agreement, the benefit of a reduction of one-third to two-thirds of the applicable fine, depending on the effectiveness of the cooperation.

Note that the Brazilian Competition Act does not provide for a clear concept of ‘prior knowledge’. Usually, prior knowledge is understood to exist only when, at the time the leniency agreement is proposed, there is an ongoing administrative proceeding^[13] with reasonable evidence of the violation in relation to the proposed leniency agreement.

Considering that administrative penalties for committing antitrust violations can be considerably burdensome, the alternative of entering into settlement agreements (especially leniency agreements, in which full immunity is a possibility) could be a considerable option to the party.

Similarly, in the criminal sphere, entering into a leniency agreement can be extremely beneficial, as it suspends limitation periods and prevents the criminal prosecution of the signatory party with respect to antitrust offences. This means that, once the leniency agreement has been fulfilled, the ability to sanction the signatory party on antitrust offences is extinguished,^[14] and the signatory party avoids conviction completely in both administrative and criminal spheres.

The benefits supposedly associated with entering into leniency agreements with CADE are corroborated by CADE’s statistics. As at 27 December 2019, 99 leniency agreements had been issued by CADE, of which 76 were issued after the new Brazilian Competition Act was introduced in 2012, which means that the number of agreements rose significantly after the leniency programme was reformed.^[15]

Procedure for the negotiation of a leniency agreement

In terms of procedures, the Brazilian Competition Act sets forth that the GS is the competent authority to conclude antitrust leniency agreements with the assistance of the state or the federal Public Prosecution Service as a consenting party. CADE’s Tribunal does not participate in the negotiation or execution of leniency agreements and is only responsible for declaring whether or not the leniency agreement has been fulfilled at the time it issues a final decision on the corresponding administrative proceeding. CADE’s declaration of fulfilment of the leniency agreement does not need to be confirmed by the judiciary.

The negotiation of a leniency agreement generally occurs in three phases:

• securing a marker;
• submitting evidentiary information on the reported offence; and
• executing the leniency agreement.

The request for a marker is the act whereby the potential signatory party contacts the GS to communicate its interest in proposing a leniency agreement related to a given conduct, and thus be ensured that it is the first applicant in line in relation to such conduct, as the GS only enters into one leniency agreement per antitrust violation. If a marker for the reported conduct is not available, the party that requested it will be placed in a ‘queue’ (organised in order of arrival) to enable it to eventually negotiate a leniency agreement if the first leniency proposal is rejected or withdrawn. If the first leniency proposal goes through, the queueing signatory parties will be invited to negotiate cease-and-desist agreements with the authorities before the administrative proceeding is initiated.

In this process, if the applicant withdraws its leniency application, or if its proposal is rejected by the GS, all documents submitted to CADE will be returned to the leniency applicant and all information submitted will be kept confidential – CADE will not be allowed to share it or use it for initiating investigations or other purposes.^[16] In addition, during negotiations involving the leniency agreement, the confidentiality of the proposal and of the whole negotiation proceeding is both a guarantee and a duty of the potential signatory party, under penalty of hindering the progress of negotiations.

Leniency plus

The leniency plus agreement is a third type of settlement agreement made available by CADE in line with its objectives of combatting antitrust violations. This third type of settlement agreement encourages potential signatory parties to provide information on undiscovered anticompetitive conduct. For instance, a company that has participated in an antitrust violation that CADE is already aware of, that provides information on a second violation about which the GS had no prior knowledge, qualifies for the benefits of the leniency plus agreement. In addition to all the benefits of the leniency agreement in relation to the antitrust violation it reported, the party receives a reduction of one-third of the applicable penalty in the first antitrust violation under investigation (for which it did not qualify for the leniency agreement), as long as it cooperates with the investigations.^[17]

Cease-and-desist agreements

In accordance with Article 85 of the Brazilian Competition Act, a cease-and-desist agreement is available for all parties that took part in an anticompetitive conduct already identified by CADE (including unilateral conduct and cartels), but that were not the first party to report the conduct to CADE.

Requisites for and benefits of a cease-and-desist agreement

According to Article 85 of the Brazilian Competition Act, for both unilateral conduct and cartel cases, a cease-and-desist agreement should include:

• the specification of the defendant’s obligation to cease the practice under investigation and its harmful effects, as well as obligations deemed applicable;
• the setting of fines to be paid in the case of failure to comply, in full or in part, with the undertaken obligations; and
• the setting of pecuniary contributions to be paid to the Diffuse Rights Defence Fund, when applicable.

CADE has issued specific guidelines on cease-and-desist agreements related to alleged cartel practices. Accordingly, in these cases, the cease-and-desist agreements must fulfil the following mandatory requisites: the acknowledgement of participation in the conduct; the commitment to cooperate with the investigation; and the payment of a pecuniary contribution on a monetary value that cannot be less than the minimum required under Article 37 of the Competition Act.

The scope of the acknowledgment of participation should be limited to the conduct under investigation, in consideration of the potential exposure in relation to civil claims and criminal prosecution. Cooperation, in turn, may be implemented in several ways, including, for instance, the provision of documents, the interpretation of documents and making individuals available for deposition.

The pecuniary contribution is paid to the Fund for the Defence of Collective Rights and is usually calculated in a three-step process:

• calculating the turnover in the sector of activity under investigation in the year preceding the initiation of the investigation;^[18]
• defining the percentage of the potential fine; and
• defining the percentage by which the fine will be reduced.

CADE Resolution 3/2012 provides a list of fields of business activities for purposes of the fine calculation. However, the Resolution’s list is considered by many to be too broad, so for a proportional and reasonable turnover amount, in certain cases CADE may consider the basis of calculation as the turnover of the investigated party in the effective product and geographic market affected by the conduct.

The potential fine that would be applicable in the case of conviction is equivalent to 0.1 per cent to 20 per cent of the defined turnover, according to the Brazilian Competition Act. In practice, the reference adopted by CADE in cartel cases (or hardcore cartels) is 15 per cent, which may be reduced to 12 per cent or increased to the maximum permitted by law, 20 per cent, depending on mitigating or aggravating elements. The percentage in unilateral conduct cases and other horizontal investigations may be lower than 12 per cent.

The percentage by which the fine will be reduced is defined according to the timing of the proposal and the existence of previous proposals:

• the first company to propose a settlement may receive a reduction of between 30 per cent and 50 per cent;
• the second company to propose a settlement may receive a reduction of between 25 per cent and 40 per cent; and
• other companies that propose settlements may receive a reduction of up to 25 per cent.

In general terms, the reduction percentage may not be higher than the reduction percentage established by CADE in the previous agreements entered into in the same investigation.

CADE’s guidelines for cease-and-desist agreements provide the exact parameters that will define the percentages of discount that can be applied in a given investigation. Accordingly, the following elements are taken into consideration:

• identification of the participants in the violation;
• provision of information about the violation;
• provision of documents that prove the violation; and
• procedural timing of the settlement request.

The scope and usefulness of the cooperation are the main criteria for establishing the reduction of the expected fine. A higher reduction will therefore depend on the valuation of the contribution to the investigation; for instance, how much the parties collaborate on the identification of other agents involved in the violation and the volume of effective evidence of the alleged violation (e.g., with the production of new documents that had not been seen by the competition authorities). In certain cases, the applicant’s contribution could be limited to confirming and corroborating what is in the case files.

Considering the discount parameters for cease-and-desist agreements described above, it is worth noting that, in the case of a subsequent application of a leniency plus agreement, the following total discounts of the potential fine could be expected:

• the first company to propose a cease-and-desist agreement in connection with a leniency plus agreement may receive a reduction of between 53.33 per cent and 66.67 per cent;
• the second company to propose a cease-and-desist agreement in connection with a leniency plus agreement may receive a reduction of between 50 per cent and 60 per cent; and
• the third company to propose a cease-and-desist agreement in connection with a leniency plus agreement may receive a reduction of up to 50 per cent.

Cease-and-desist agreements, therefore, allow defendants to reach relevant discounts on the potential fines that may be applied by CADE in the case of a conviction, which may be significantly high. Therefore, in cases in which the level of evidence makes a conviction probable, negotiating a cease-and-desist agreement is usually an advisable alternative. Another benefit in this settlement alternative is related to timing and predictability, as it grants the companies the opportunity to anticipate the amount of money that may be disbursed (or contingencies to be calculated) in the context of the investigation. Nevertheless, as cease-and-desist agreements do not provide for criminal immunity, an assessment of the exposure in the criminal sphere and possible mitigating actions is key in the strategic decision-making process. Cease-and-desist agreements also do not exempt signatory parties from being held liable for antitrust damages in a civil action.

CADE’s cease-and-desist agreement programme has also become more sophisticated, and its benefits for signatory parties is evidenced by the number of agreements concluded with CADE in recent years. In 2019, CADE entered into 19 cease-and-desist agreements, which generated 167.5 million reais in pecuniary contributions payable by the undertakings. The numbers are lower than the amounts paid in 2018 (1.3 billion reais), when CADE registered several agreements related to Operation Car Wash (the major anti-corruption operation undertaken by the Brazilian Federal Police and the Federal Prosecutor’s Office) but are still significant and demonstrate an increase in the number of cease-and-desist agreements being concluded with CADE.

Procedure for the negotiation of a cease-and-desist agreement

Cease-and-desist agreements may be negotiated at any stage of the investigation, during the investigation phase conducted by the GS or by the Administrative Tribunal before a final decision is rendered by CADE. Nevertheless, as the reduction depends on the timing and stage of the investigation, the level of discounts in a cease-and-desist agreement negotiated with the Administrative Tribunal tends to be lower.

As in leniency agreements, for cease-and-desist agreements CADE also relies on a system of markers that considers the order of presentation of the requests. After the receipt of a certificate containing the marker, the applicant has five days to formalise its interest in negotiating the settlement (formal request). Cease-and-desist agreement requests may be presented to CADE only once in each investigation (one-shot game).

If a company and its employees are under investigation, they can negotiate a cease-and-desist agreement together. In this case, each defendant must file its own settlement request and wait for the authorities’ authorisation to proceed with the joint negotiation.

The filing of a cease-and-desist agreement request does not stay the investigation. Therefore, all steps of the investigation, including the potential presentation of a defence, shall continue. The request does not result in confession in relation to the facts or acknowledgment of the illegality of the practice.

Upon the filing of a cease-and-desist agreement request, parties will have a term to negotiate and reach a common understanding with the authorities, which is usually 60 days for cases at the GS level and 30 days for cases at the Administrative Tribunal. This term may be renewed by the General Superintendent or by the Reporting Commissioner responsible for the case at the Administrative Tribunal, depending on the public interest in the course of the negotiation and according to the circumstances of the actual case.

The negotiation of a cease-and-desist agreement is carried out with a Negotiation Committee, composed of at least three members. If the investigation is at the GS level, negotiations will be held with the Negotiation Committee and the General Superintendent, who will forward the request to the Administrative Tribunal with its recommendation for the approval or rejection of the settlement. If the case is already at the Administrative Tribunal for ruling, the proposal is negotiated with the Negotiation Committee and the Reporting Commissioner of the case.

In both scenarios, the case will be decided in a plenary session held by the Administrative Tribunal, which may only approve or reject the proposed settlement agreement, meaning that the Administrative Tribunal cannot propose an amendment of the terms of the final version of the settlement agreement as a result of its decision.

With regard to the effects of the cease-and-desist agreement, the administrative proceeding is suspended in relation to the defendant that has signed the agreement, while its commitments are being complied with and shall be dismissed at the moment the Administrative Tribunal confirms that all the conditions set forth therein are satisfied (in cartel investigations, this usually occurs at the moment the Administrative Tribunal issues its final decision in the case).

Paradigmatic cases

Petrobras abuse of dominance cases

The most recent innovative cease-and-desist agreements were executed between CADE and state-owned oil and gas company Petrobras in 2019. The agreements were negotiated in the context of investigations involving alleged abuses of dominant position, which led to the obligation to divest assets in the natural gas^[19] and refining markets.^[20] The divestment obligations aim to increase competition in the natural gas and refining markets, to cease the allegedly existing abusive practices and to prevent these practices occurring in the future. These were the first abuse of dominance cases in which CADE required a divestment obligation.

Previously, CADE had imposed a divestment obligation in a single cease-and-desist agreement negotiated with Cascol Combustíveis, in the context of an administrative inquiry on a cartel in the fuel resale market in the Federal District.^[21] In addition to the standard obligations in a cartel cease-and-desist agreement, the agreement also provided for the divestment of petrol stations currently under Cascol Combustíveis’ management in key points of the Federal District, to reduce market concentration and to allow the entry and development of competitors, mitigating the risk for future collusion in the sector.

Agreements in the context of Operation Car Wash

Operation Car Wash is a major anti-corruption operation undertaken by the Brazilian Federal Police and the Federal Prosecutor’s Office, which resulted in the negotiation of several agreements with CADE (including leniency, leniency plus and cease-and-desist). These agreements were relevant for strengthening CADE’s repressive functions, not only due to the increase in the number of agreements, but also due to their sophistication, particularly concerning the ability to coordinate multiple parallel investigations and to interact with other competent authorities.

In 2018, CADE entered into cease-and-desist agreements with Carioca Christiani-Nielsen Engenharia, Construtora Norberto Odebrecht, Construtora OAS and Construtora Andrade Gutierrez.^[22] In addition to the standard obligations in a cease-and-desist agreement in a cartel case, including pecuniary contributions amounting to 897.9 million reais and the obligation to develop consistent compliance programmes (an obligation that has become more common following the agreements negotiated in the context of Operation Car Wash), these agreements included another innovation. To summarise, the agreements provided for the possibility of a reduction of the negotiated pecuniary contribution by up to 15 per cent if the signatories prove the judicial reparation of the harm caused by the anticompetitive practices, in accordance with CADE Resolution 21/2018.

According to CADE’s chairman, Alexandre Barreto, ‘the agreements aim to create the correct incentives for the refund of public accounts . . . therefore, enabling a goal historically pursued by CADE, which is the complementarity of investigations by different institutions under the same framework’.

Confidentiality

General confidentiality provisions

To ensure that the signatory parties will be granted the correct incentives that apply to both leniency agreements and cease-and-desist agreements, in general, the whole settlement procedure may be treated as confidential during the negotiation phase.

Leniency agreements and cease-and-desist agreements are composed of three main categories of documents:

• the settlement agreement, determining the main conditions agreed between the applicant and CADE;
• the history of conduct, which includes the applicant’s description of the facts under investigation and the acknowledgement of its participation in the conduct; and
• documents and evidence supporting the statements in the history of conduct, in collaboration with the investigations.

Even after the signature of a leniency agreement and the initiation of an investigation, CADE has several procedures to ensure the confidentiality of the process, including the possibility of not making public to third parties the information that the case originated from a leniency agreement.

Considering that cease-and-desist agreements must be homologated in a public hearing by the Administrative Tribunal, there is a certain level of publicity of the agreement (i.e., name of the applicants and value of the pecuniary contribution). Also, a non-confidential version of the agreement is made available on CADE’s website and CADE may issue a press release on it.

In the majority of cases, however, the most sensitive documents (i.e., history of conduct, documents and evidence) will be treated as confidential and will only be available to the other defendants during CADE’s investigation. It is possible that part of the evidence will be made available to third parties as part of the Administrative Tribunal’s final decision.

Private claims

As described above, the Brazilian Competition Act establishes that injured parties may defend their individual or diffuse interests in court by way of measures intended to cease anticompetitive practices, and to seek redress for losses and damages suffered.

In this context, a judge in a private claim may request that CADE provide documents obtained in an administrative proceeding, sustaining that these documents are relevant evidence to demonstrate the existence and extent of damages. Nevertheless, because these documents may have been obtained by CADE in the context of settlement agreements, the limits of such disclosure shall be defined to preserve the attractiveness of CADE’s leniency and settlement agreement programmes. This topic has been widely discussed in Brazil in recent years.

In 2016, the Brazilian Supreme Court of Justice (STJ) issued a decision providing that CADE should disclose confidential documents originating from a leniency agreement signed in the Compressors cartel case,^[23] which brought special attention to this discussion. After CADE’s appeal, the STJ clarified that the disclosure should respect business secrets and relevant information for competitive purposes, and only occur after a final ruling by the Administrative Tribunal.

Based on that ruling, CADE issued Resolution 21/2018, which specifies the procedures for, and limitations on, the disclosure of information and documents obtained by CADE in an administrative investigation. The Resolution sets out a list of documents that are exempted from disclosure, including the history of conduct (i.e., confessions and admissions), and business secrets and relevant information for competitive purposes. It also provides that the Public Prosecutor’s Office participating in leniency agreements may have access to all documents provided by the signatory company, which may be used in private litigation or a criminal investigation, and that confidential documents lose their confidential status when the Administrative Tribunal issues its final decision on the case.

Cooperation with other authorities

Cooperation between authorities in Brazil

Several agreements related to Operation Car Wash have been jointly signed by CADE and the Prosecutor’s Office or the State Prosecutor for both collusion and corruption crimes. This has highlighted the importance for CADE to cooperate and coordinate investigations involving practices other than collusion with other public institutions, such as the Public Prosecutor’s Office, the Comptroller General’s Office and the Court of Accounts.

In the context of these increasing interactions with other authorities in several investigations, in 2019 and 2020 CADE entered into cooperation agreements with the Federal Public Prosecutor’s Office, public prosecutor offices from all 26 states and the Federal District, and other regulators aiming at an institutional joint-partnership that encompasses cooperation in the repression of anticompetitive practices, including settlement agreements.

Coordination between authorities is certainly a trend for complex investigations in Brazil, demanding a multi-disciplinary and sophisticated approach from companies, legal advisers and enforcers.

International cooperation

CADE expressly states in its Antitrust Leniency Programme Guidelines that information from a leniency agreement shall not be shared with foreign competition authorities, unless expressly authorised by the signatory parties, through a waiver, for procedural or material aspects.

In the case of international cartels, in situations in which the applicant is negotiating a leniency agreement in multiple jurisdictions, the waiver may be attractive in terms of timing and efficiency, since the coordination of the different procedures may avoid the duplication of information.

Conclusion

As described above, CADE’s leniency and cease-and-desist agreement programmes have undergone relevant developments in recent years, becoming a key tool for CADE’s enforcement policy in relation to anticompetitive practices in Brazil, particularly in relation to the deterrence of cartel practices.

As in other jurisdictions, settlements allow parties and authorities to save time and resources. In this sense, according to the OECD’s Peer Reviews of Competition Law and Policy in Brazil:

From the agency’s perspective: it saves time and resource that would otherwise be required to investigate and prosecute conduct in a fuller procedure, produce fully reasoned decisions, and/or litigate cases before the courts. For defendants, major benefits include a reduced fine, greater ability to reach an acceptable resolution in a defined time frame and the ability to avoid a lengthy, costly investigation and litigation that can distract management and generate negative publicity.

Nevertheless, considering that neither agreement exempts parties from private litigation and that cease-and-desist agreements do not provide criminal immunity for individuals, in cases in which there may be a strong defence strategy, parties should weigh the pros and cons of the decision to settle with CADE.

Notes