INTERNATIONAL: BRAZIL - COMPETITION POLICY - CARTELS - DOMINANCE - COMPLIANCE PROGRAMS

Brazil: Compliance programs and abuse of dominance practices under Brazilian competition law – A roadmap for compliance monitors

The Brazilian antitrust authority (Portuguese acronym CADE) has been following a worldwide trend in encouraging the adoption of competition law compliance programs. Nevertheless, one can see an apparent policy gap in the current optimal incentives for compliance program adoption in antitrust enforcement. While programs aimed to detect cartels are being increasingly rewarded with reductions in fines for antitrust infringements imposed by the competition authority, there is still little guidance on how compliance programs should be structured to detect prior and avoid abuse of dominance practices. As CADE’s approach to monopolization practices has relied on a variety of presumptions of lawfulness, this article explores three main elements that should be incorporated into an effective antitrust compliance program aimed to prevent monopolization: (i) a conservative assessment of market power; (ii) a strict and proportional standard for measuring efficiency justifications and (iii) a viable mechanism for submitting consultations to CADE’s Tribunal. From the perspective of both the business community and enforcers, competition law compliance programs should be viewed as a catalyst for improving antitrust enforcement against abuse of dominance practices.

I. Introduction 1. The Brazilian antitrust authority, Conselho Administrativo de Defesa Econômica (Portuguese acronym CADE), has been following a worldwide trend in encouraging the adoption of competition law compliance programs, understood as a set of measures adopted within a company to instruct its personnel about competition law violations, and thus prevent them. In 2016, CADE issued Guidelines for Competition Compliance Programs, [1] which established non-binding instructions for these programs and clarified the advantages in adopting them. Since these guidelines were released, CADE has settled several cartels investigations, imposing on companies the obligation to implement ex post compliance programs. [2] 2. Nevertheless, one can see an apparent policy gap in the current

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Victor Oliveira Fernandes, Brazil: Compliance programs and abuse of dominance practices under Brazilian competition law – A roadmap for compliance monitors, September 2019, Concurrences Review N° 3-2019, Art. N° 90987, pp. 216-227

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