Antitrust Compliance in Brazil

Antitrust compliance programmes are not mandatory in Brazil. Nevertheless, the Brazilian antitrust authority, CADE, pays special attention to them. In this regard, CADE institutionally promotes the compliance agenda and, when examining anticompetitive conduct or merger review proceedings, is receptive to compliance programmes’ clauses. Compliance programmes are valuable tools to multiply the effects of competition law enforcement, as they decentralise enforcement, and detect and deter wrongdoings in a prompt and documented manner. Considering 73 percent of antitrust immunity applications are rejected for untimeliness or lack of documentation, the authority recently launched evidential guidelines, which can be a useful resource in improving compliance routines.

By Alexandre Cordeiro Macedo & Aldén Caribé de Sousa[1]

I. INTRODUCTION

The Brazilian Competition Law does not require private companies to adopt compliance programs. However, the law provides for liability regardless of fault, which to some extent encourages companies to implement these programs.

Imposing a penalty when there is liability regardless of fault only requires the antitrust authority to identify the wrongdoing and its causal link, connecting the violation to the violator. As the authority does not examine whether there was intention or negligence, in order to avoid sanctions, the best path is to avoid taking risks – and compliance programs serve exactly this purpose.

Conversely, the Br