Brazil: Brazilian Competition Policy In Global Context: Achievements And Challenges

Last Updated: 9 April 2014
Article by Eduardo M. Gaban
Most Read Contributor in Brazil, December 2017

Keywords: competition, antitrust, mergers, Administrative Council for Economic Defence, CADE, Brazilian System for Economic Defence, SBDC,

Enforcement of antitrust law in Brazil has continued its trend toward consolidation and evolution.1 Brazil's economic growth has resulted in more complex transactions being submitted to merger control, as well as more complex and veiled antitrust investigations. In turn, this has increased the visibility and relevance of the Brazilian System for Economic Defence (SBDC) and, especially, of the Administrative Council for Economic Defence (CADE), the country's main antitrust agency.2

According to CADE's 2012 Annual Report, CADE has increased the number of its technical staff, and given them more responsibility, resulting in a rise in the number of cases analyzed per year: from 666 in 2005 to 955 in 2012, out of which 825 were merger filings notified under the old regime and 102 merger filings submitted under the new regime. In the first half of 2013, 82 new proceedings were filed, 158 were ruled on (out of which 59 were merger filings) and only 219 remain under analysis.

In addition to the staff increase, the reformulation and the enhancement of cooperation within the SBDC (i.e., the Secretariat of Economic Monitoring— SEAE, the Secretariat of Economic Law—SDE, CADE's Attorney General Office, and Federal Public Prosecution Office and CADE) eliminated overlapping activities and significantly reduced the average analysis period of merger filings—from 252 days in 2005 to 48 days (ordinary procedure) and 19 days (summary procedure), both in 2012.

The depth and strength of the decisions can also be regarded as an achievement. For example, since the New Brazilian Antitrust Law (Law No. 12529/2011) came into effect, CADE has been keeping an eye on healthcare markets. This has resulted in significant restrictions being imposed in some transaction involving the acquisition of hospitals in several Brazilian cities, including Rede D'Or and Medgrupo Participações S.A., the veto of the acquisition of Hospital Regional de Franca by Unimed and the acquisition of Aliança by Qualicorp in the healthcare insurance sector.

Additionally, in May 2012, CADE authorized the assets swap between Brasil Foods (BRF) and Marfrig Alimentos S.A., in compliance with heavy commitments of selling assets assumed by BRF involving approximately 35 percent of the parties' production capacity in Brazil comprising production facilities, distribution centers and an important portfolio of products and brands.3 Also, the authority cleared the transaction between the airline companies LAN and TAM, subject to the swap with a competitor of some slots and infrastructure in the São Paulo International Airport and to the exit of one of the worldwide airline company's alliances (One World or StarAlliance).4

In the steel sector, CADE granted an injunction to prevent completion of the acquisition by the Brazilian Companhia Siderúrgica Nacional (CSN) of additional stakes in its competitor, Usinas Siderúgicas de Minas Gerais S.A. (Usiminas).5 CADE ordered that until a final decision is rendered and subject to the imposition of fines of Brazilian Real (BRL) 10 million plus BRL 10,000 per day of violation, CSN would not be allowed to appoint any member to the board of directors or any other management board of Usiminas. Cade also ordered that no company of CSN's economic group should have access to competitively sensitive information or exercise any management or political rights over Usiminas (e.g., voting in the general shareholders' meetings). In addition to this, CADE imposed restriction in the creation of a partnership between Usiminas and nineteen distributors of flat steel, eliminating an exclusivity clause set forth in their agreement.

While still under the old regime, CADE executed some Agreements to Preserve Reversibility of the Transaction (APROs) in important transactions in order to maintain the competitive environment, as well as to keep the parties independent until a final decision was reached. This was the case in the merger between the Brazilian airline companies Gol and WebJet,6 as well as the transaction concerning the acquisition by Diagnósticos da América S.A. (DASA) of control over MD1 Diagnósticos S.A.,7 and the subsequent acquisition by AMIL Group of participation on DASA's shares in the health assistance and diagnosis services sector.

Under the new regime, CADE has entered into the first merger control settlement agreements (ACCs) in transactions that raised competition concerns, as a condition for their clearance under the Law No. 12529/11. The first such case refers to the acquisition of Mach by Syniverse. During examination, the General Superintendence found that the transaction would result in high concentration in the GSM data clearing and Near Real Time Roaming Data Exchange (NRTRDE) markets, which are technological services provided to mobile telecommunication companies for the charging of roaming. To remedy competition concerns, Mach and Syniverse proposed executing the agreement, through which they undertake certain obligations to remove any anticompetitive outcomes from the transaction.

In the second case, involving Ahlstrom Corporation and Munksjö AB, CADE concluded that there was high concentration in the pre-impregnated decorative paper (PRIP) market and in the heavy abrasive paper market, and that there were neither prospects of new entrants into the sectors nor sufficient firms able to compete in these markets. Therefore, the sale of an industrial unit of Ahlstrom was established as a condition to the deal.

CADE also cleared complex transactions, e.g., the merger between two big retailers Casas Bahia and Ponto Frio, acquisition of Skype by Microsoft, several acquisitions in the meat sector by JBS (although CADE is monitoring the market by means of monthly reports sent by the company).

Interestingly, CADE cleared the transaction between airline companies Azul and Trip, on the condition that by the end of 2014, the flight share agreement (code share) that Trip has with TAM be terminated as well as the use with intensity at least of 85 percent of their scheduled takeoffs and landings at the Santos Dumont airport, located in Rio de Janeiro. However, this case demonstrated that CADE is carefully reviewing and verifying all the information provided by the applicants, as the authority imposed an R$3.5 million fine (out of a maximum of R$5 million) on the companies for presenting misleading information. This kind of penalty had already been provided by former Law No. 8884/94, although there are no decisions that are worth mentioning in this sense. The penalty was maintained in Law 12529/2011, and only now has CADE applied a strict analysis of accuracy and completeness to information provided by the parties and demonstrated its willingness to punish any minimal evidence of misleading information.

In the case Azul/Tryp, for instance, CADE imposed such a high fine because the parties did not provide information about the existence of a code share agreement with TAM. This information came out during complementary discovery by CADE and was determinant to the imposition of restrictions to the transaction.

The second, and more recent case of misleading information involves Lauriate Group and the Brazilian private university Anhembi Morumbi, which were fined in R$4 million for hiding information of their economic groups, which would show that a Lauriate Group's members were already active in the educational sector. The transaction involved the rise of equity interest of Lauriate Group in the managing company of Anhembi Morumbi from 51 percent to 100 percent.

The first precedent of misleading information concerned the transaction between the companies Cruzeiro do Sul Educacional S.A. and ACEF S.A., in the distance learning sector. According to CADE, the parties did not inform an accurate number of courses offered and the number of students enrolled. CADE imposed a fine of R$200,000.

Under the new regime, CADE has also focused the analysis of merger filings on consolidating a restrictive and objective approach in regard to the notification thresholds, as well as acknowledging the need to enact regulations concerning some concepts of Law No. 12529/11, such as the "associative agreements" (including distribution agreements, consultancy agreements, partnerships in general, service agreements, etc.) that fall within the scope of antitrust law, as well as the concepts of control and relevant influence for the purposes of submitting a transaction to merger control.

CADE also evolved controlling behaviors, such as cartels and unilateral conducts; however, society is still waiting for a development in this sense, be it in terms of speedy to conclude the cases, be it in terms of willingness to face more cases.

All of the changes to the SBDC that have taken place are still not enough to put Brazil in the first tier in terms of antitrust enforcement and competition culture. Cultural and latent problems, not exclusively related to competition law and to the SBDC, but rather related to Brazil as a whole, have made the challenge that much greater.

In this regard, it is important to recognize that competition law in Brazil is still less than 20 years old. Competition culture has not yet been fully established at the academic or governmental levels, let alone the business environment or society as a whole.

The tripod underlying the Brazilian Competition Policy (merger control, behavior control and competition advocacy) is still being developed. In merger control, CADE is facing a quite settled case law and methodology, which, in addition to the institutional maturity, gives the society the desired predictability of whether a transaction should be submitted to CADE and whether there will be difficulties for unconditional clearance.

CADE has continued to develop its efforts at behavioral control. This can be observed by the number of cases it has ruled on, the level of penalties applied and the outcomes of the judicial decisions when CADE's rulings have been challenged. However, CADE needs to keep developing and refining its investigations in order to signal to society that it is not worth the risk to violate antitrust laws.

For new cases, the leniency program is still something of an unknown. It brings little confidence because Brazil's legal tradition is not used to granting benefits to criminals who, in admitting to and giving information on their crimes, assist in the conviction of other possible wrongdoers. However, leniency agreements are useful for the authorities because they make it possible to obtain information that would be very hard to obtain in the normal course of an investigation.

Additionally, the unilateral conduct cases are not a small challenge to be faced. CADE has not many cases of conviction, but stared to fix its position, what was seen in the case SKF (2013), the first conviction for resale price maintenance. The case involving Banco do Brasil and exclusive dealing in payroll loans (2012) can be also regarded as an achievement. More cases of unilateral conducts, including those related to state-owned enterprises, might arise and lead CADE reinforce its mandate for free competition and a level playing field regime within the Brazilian markets.

CADE is commencing to define its role on competition advocacy, which might be shared with SEAE. Problems related to taxation could trigger this very important pillar of competition law in Brazil. Both of them shall think antitrust in a broader manner in order to contribute to social welfare as much as possible. The Brazilian society is anxious for a support of the expert on competition to help the country become more competitive and fair.


1 Competition and Antitrust are synonyms in Brazil; thus this article uses either Competition Law or Antitrust Law.

2 The SBCD, the Brazilian antitrust system, is composed of three administrative entities that are jointly responsible for the antitrust enforcement: (i) Secretariat for Economic Law of the Ministry of Justice (SDE); (ii) Secretariat for Economic Monitoring of the Ministry of Finance (SEAE); and (iii) Administrative Council for Economic Defense (CADE).

3 Brasil Foods S.A./Marfrig Alimentos S.A. Concentration Act No. 08012.011210/2011-67. Introduced in November 2011, and cleared in July 2012.

4 TAM S.A./Lan Airlines S.A. Concentration Act No. 08012.009497/2010-84. Introduced in September 2010, and cleared in December 2011.

5 Companhia Siderúrgica Nacional/Usinas Siderúgicas de Minas Gerais S.A. Concentration Act No. 08012009198/2011-21. Introduced in September 2011 and cleared in April 2012.

6 Webjet Linhas Aéreas S.A./VRG Linhas Aéreas S.A. Concentration Act No. 08012.008378/2011-95. Introduced in July 2011, and cleared in October 2011.

7 MD1 Diagnósticos S.A./Diagnósticos da América S.A. Concentration Act No. 08012.010038/2010-43. Introduced in September 2010, and cleared in October 2011.

Learn more about our Antitrust & Competition practice.

Visit us at Tauil & Chequer

Founded in 2001, Tauil & Chequer Advogados is a full service law firm with approximately 90 lawyers and offices in Rio de Janeiro, São Paulo and Vitória. T&C represents local and international businesses on their domestic and cross-border activities and offers clients the full range of legal services including: corporate and M&A; debt and equity capital markets; banking and finance; employment and benefits; environmental; intellectual property; litigation and dispute resolution; restructuring, bankruptcy and insolvency; tax; and real estate. The firm has a particularly strong and longstanding presence in the energy, oil and gas and infrastructure industries as well as with pension and investment funds. In December 2009, T&C entered into an agreement to operate in association with Mayer Brown LLP and become "Tauil & Chequer Advogados in association with Mayer Brown LLP."

© Copyright 2014. Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions