The Antitrust Review of the Americas 2009

Brazil: Cartels and Leniency

01 January 2009

When the head of the Antitrust Department (DPDE) of the Secretariat of Economic Law (SDE) told members of the ICN's Cartels Working Group that the SDE has been conducting nearly 300 cartel investigations, she was met with distrust and numerous questions. It is not surprising, though, that Brazilian executives and large companies have developed a culture of cooperation and collusion, after having been under a centralised economy in which the state fixed prices in agreement with producers until the 1990s. Add the appeal of monopoly profits, highly concentrated industries, an economy based primarily on commodities or homogeneous products, antitrust authorities with scarce resources, and underdeveloped private enforcement of competition laws and you have the perfect formula for widespread, pervasive cartelisation. However, thanks to the continuous efforts of enforcers from the SDE, CADE (Administrative Council for Economic Defence, the adjudicating commission), and SEAE (the Secretariat of Economic Monitoring), the situation is rapidly changing. As of August 2008, several of Brazilian (and foreign) major companies as well as their executives have faced cartel investigations, dawn raids, increased penalties, and criminal actions. Moreover, Brazil's recent leniency programme has been successfully implemented; at least 10 companies or individuals have self-reported and cooperated with the investigations in their industries and several other requests for leniency are currently under analysis. In addition, with the emergence of private actions for damages, the costs of collusion have significantly increased. Furthermore, in-house and outside counsels alike have decisively contributed to prevent collusion by exposing the risks of domestic and international prosecution and implementing state-of-the-art compliance programmes. Accordingly, firms have gradually internalised the costs of cartelisation and the hard work of enforcers is paying off. Nevertheless, significant challenges lay ahead. The challenge facing CADE, the SDE and SEAE is two-fold: consolidate their gains and, thus, enhance deterrence; and increase penalties to effectively punish future collusive schemes, since firms are expected to weigh the costs and benefits of cartelisation based on the current levels of punishment. On the other hand, for leading companies, the central challenge is to effectively implement compliance programmes in order to avoid administrative, civil and criminal liability.

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