Competition law and policy in Brazil: new developments and trends
Mattos Filho’s latest antitrust publication features analysis of competitor cooperation in relation to sustainability agreements, coordinated conduct investigations and antitrust damages claims
2023’s second edition of Competition Law and Policy in Brazil: New Developments outlines the main trends and perspectives regarding the Brazilian antitrust authority’s (CADE) handling of important antitrust cases.
The publication’s four articles feature analysis and comments from Mattos Filho’s antitrust professionals, who draw attention to what companies should be aware of when doing or planning to do business in Brazil.
The topics covered in this edition are summarized below:
Sustainability agreements and competitor cooperation
Sustainability agreements have reignited debates on the competitive effects of cooperation between competitors. In addition to existing guidelines on cooperation between competitors in other contexts, several authorities around the world have published guidelines on sustainability agreements to ensure they do not violate competition laws in their respective jurisdictions. Certain landmark cases, such as the ‘Chicken of Tomorrow’ case in the Netherlands, and another case involving a joint venture between companies in Brazil’s agricultural sector, provide important insights into this subject.
New trends in CADE’s investigation of coordinated conducts
Apart from cartels, CADE has been showing increasing interest in “non-traditional” forms of conduct that may lead to coordinated anticompetitive effects. New investigations launched by CADE relate to practices such as deal registration combined with hub-and-spoke cartel, or even to statements by company representatives that have raised coordination concerns. These new investigations are a warning sign for companies both in regard to certain common practices in the market and statements made by company representatives.
Key developments in CADE’s rulings on concerted practices
Recent decisions issued by CADE’s Tribunal have provided significant insights into the use of indirect evidence as proof of anticompetitive conduct. They have also signaled possible changes on the methodology used for calculating fines in the event of a conviction, which take the advantage gained by the defendant into account – in line with a trend previously mentioned in other editions of this bulletin.
Antitrust damage claims: where does Brazil stand?
Antitrust damages claims (known in Brazil as ARDCs) are becoming more prominent in Brazil, with a considerable increase in the number filed between 2017 and 2020. In this scenario, recent changes to Brazil’s Competition Law brought about by Law No. 14,470 (which took effect on November 16, 2022) have introduced important updates that may impact ongoing ARDCs in Brazil. While such changes may foster private enforcement locally, significant challenges remain – both from an institutional standpoint and from the perspective of parties interested in filing ARDCs.
Please click here to read the publication in full.
For further competition-related news in Brazil, please see the previous editions of Competition Law and Policy in Brazil: New Developments.