Originally from:
International Antitrust Law & Policy: Fordham Competition Law 2010 - Hardcover
International Antitrust Law & Policy: Fordham Competition Law 2010 - PDF
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Chapter 4
BRAZIL'S ANTI-CARTEL ENFORCEMENT:
THE CHANGING LANDSCAPE
Mariana Tavares de Araujo & Ana Paula Martinez *
One of the most notable changes in law and legal thinking in the past
few decades has been the dissemination of antitrust legislation across
countries, and more recently a growing global movement to severely
sanction hard core cartels.
Brazil is no exception to this trend. Since 2003, the Brazilian antitrust
authorities have promoted a hierarchy of antitrust enforcement that places
hard-core cartel prosecution as their top priority. Although administrative
enforcement has been the key driver of Brazil’s anti-cartel policy until
very recently, in the past seven years enforcement has been set under the
premise that enhanced deterrence is possible if the rigorous criminal
penalties provided by in the law (from two to five years of jail terms) are
sought.
As of 2003, the SDE started to use the enhanced investigative tools
granted by the Brazilian Congress in 2000 (such as dawn raids and
leniency), and the CADE began imposing record fines (over 20 percent of
the company’s gross turnover in the year preceding the initiation of the
investigation) on companies and executives found liable for cartel conduct.
SDE’s strategy of focusing available resources on cracking cartels has
proven successful and there is an increasing number of investigations of
anticompetitive practices, leniency applications and dawn raids. There are
a growing number of applicants to the Leniency Program. Approximately
20 leniency agreements were signed since 2003, and others are currently
being negotiated, including with members of alleged international cartels.
International cases, such as air cargo, marine hose, hermetic compressors,
and CRT were initiated in Brazil through leniency applications filed before
the SDE.
Mariana Tavares de Araujo & Ana Paula Martinez; Respectively, Secretary of Economic Law of the Ministry of Justice, Brazil and Director of SDE's Antitrust Division and Deputy Secretary of Economic Law of the Secretariat of Economic Law (SDE) of the Ministry of Justice, Brazil.