Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The 2011 Act provides, under Section 47, that any injured party may submit violations of the economic order to the courts for examination. The action may seek to obtain the termination of the reported practices, interim measures or damages for the loss suffered. The filing of such suit does not suspend administrative proceedings.
Section 87 addresses questions relating to the threat of criminal ch …

Enforcement by ordinary courts

Preliminary investigations are conducted by the Superintendent-General, ex officio or at the written request of interested parties (Article 66, paragraph 1). The Superintendent-General has 180 days to terminate the preliminary investigations, with a 60 day extension period (Article 66, paragraphe 9) To gather evidence, the Superintendent-General may request information and data from any person, request oral explanations, conduct inspections in business premises and upon production of a mandate from the court, may search and seize any relevant document (Article 13, paragraphe VI).

  Administrative proceedings must be initiated within 10 days after the closing of the preliminary investigation conducted upon the order of the Superintendent-General. The defendant has then 30 days to file a defense (Article 70). Once the time period for filing a defense lapses, the Superintendent-General may order investigations and evidence to be submitted within 30 days. After that time period, the defendant has 5 days to submit new observations. The Superintendent-General has then 15 days to notify the President of the Tribunal whether there are grounds for prosecution or not.

Complaints and investigations

Once the case has been deemed admissible, the Tribunal's President assigns the case to one of the six Council members. The case-handler will issue his opinion after supplementary investigations or requesting further information if necessary. The defendant has then 15 days to put forth its final arguments. At the end of this period, the case-handling Councilor issues its report, either forwarding the case to the Tribunal for review or ordering its shelving. Upon request of the case-handling Councilor, the President may invite any person to submit oral explanations to the Tribunal.

The Tribunal renders a substantiated decision, specifying the facts constituting the infringement, and the actions to be undertaken by the defendant to put it to an end, the delays for taking such steps, the amount of the fine and of the daily fine to apply while the violation is in effect and the amount of the fine incurred in case of non compliance.

On 6 March 2013, the CADE adopted a resolution on the settlement procedure (Termo de Compromisso de Cessaçao - TCC) to clarify the existing rules and enhance their use by undertakings, in particular those which cannot benefit from full immunity under the leniency program. The Resolution has been supplemented by Guidelines published in May 2016, which consolidate the best practices and procedures usually adopted during the negotiations of TCCs with the CADE in cartel cases. Pursuant to Section 85 of Act 12.529 of 2011 and Sections 184-189 of CADE's Internal Rules, reaching a settlement requires cooperation, payment of a financial penalty, the acknowledgement of participation in the conduct under investigation and an undertaking not to repeat it. The Superintendent-General determines the amount of the contribution, taking account of a percentage of fine reduction applied to the undertakings according to their rank: the first applicant may benefit from a fine reduction of 30 to 50%; the second may benefit from a fine reduction of 25 to 40% and the subsequent applicants may expect a fine reduction of up to 25%. Where the settlement is negotiated only when the case is before the Tribunal, a maximum of 15% reduction may be expected. Although the procedure creates greater incentives to enter into settlements, particularly in terms of legal certainty, a serious concern remains; in fact, contrary to leniency proceedings, undertakings entering into a settlement agreement are not shielded from criminal prosecution, which are more likely due to the fact that they have already acknowledged their guilt. However the Guidelines specify that if the party interested in signing a TCC with the CADE also wishes to simultaneously negotiate a plea bargain agreement with the Public Prosecutor and/or the Federal Police (pursuant to Law 12.850/2013), the Superintendent-General may help the TCC applicants with that process.

Proceedings before the Tribunal

Article 84 of Act No 12.529/2011 allows the Superintendent-General or the case-handling Reporting Commissioner to adopt interim measures, ex officio or at the request of the CADE's Attorney General, whenever there are signs or sound reason to believe that the defendant directly or indirectly caused or may cause irreparable or substantial harm to the market or that it may render the final outcome of the proceeding ineffective. Interim measures are meant to order prompt cessation of the harmful behavior and return to the former situation, if reasonably feasible.

The decision to adopt interim measure can be appealed to the Plenary of the Tribunal, within 5 days, without suspensive effect. 

Interim relief

The 2011 Act provides, under Section 47, that any injured party may submit violations of the economic order to the courts for examination. The action may seek to obtain the termination of the reported practices, interim measures or damages for the loss suffered. The filing of such suit does not suspend administrative proceedings.

Section 87 addresses questions relating to the threat of criminal charges under Act No 8.137. The leniency program prevents the case from being brought to court and, upon fulfillment of the leniency agreement, the offenders automatically receive full immunity for the crimes involved in that competition law infringement.

In order to balance the imperatives of private and public enforcement, the CADE adopted Resolution No 21/2018 of 5 September 2018 which details the rules relating to third parties' access to evidence obtained from competition investigations. In particular, the Resolution prohibits access to leniency and settlement agreements or business secrets. Conversely, documents establishing the proof of the infringement, such as email exchanges between competitors, may be communicated to undertakings seeking compensation after the termination of proceedings.

In addition, in May 2018, the SEPRAC published Guidelines for the determination of overcharges in the context of actions for compensation of harm caused by cartels.

Furthermore, Law No. 14.470/2022 of 17 November 2022 implemented amendments aiming inter alia  to improve private enforcement in Brazil. Law No. 14.470/2022 includes a double compensation to be recovered by the harmed undertakings and a change in the time-limit for bringing claims. 

Finally, a bill designed to foster private enforcement in Brazil is underway (Bill No 11.275/2018). It provides, inter alia, double compensation for the harm caused by infringements to Section 36 of Act No 12.259/2011, except for leniency and settlement recipients, who will only be responsible for the harm caused to the victims and a  statute of limitations of five years.

Global Competition Law

832. Enforcement by ordinary courts

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Les notions juridiques connexes

832. Enforcement by ordinary courts

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise