Abstract
Transactional institutions for administrative and criminal investigations have been in place in Brazil, in a modern form, since the early 1990s. Ever since, the use of such instruments by the authorities (e.g., public prosecutors, Government, agencies) has grown and became regarded as a valuable tool for law enforcement. Nonetheless, because of the country’s legal tradition, many practitioners still see transactional institutions as deviations from the ‘public interest’ and the ‘rule of law’, although this opinion is becoming much less common than it was in the past.
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- 1.
Articles 86 and 87 of the Competition Law and Articles 197 to 210 of CADE’s Internal Rules.
- 2.
Articles 85 of the Competition Law and 179 to 196 of CADE’s Internal Rules.
- 3.
Articles 61 of the Competition Law and 125 of CADE’s Internal Rules.
- 4.
“Superintendent-General” stands, in English, for Superitendência Geral.
- 5.
“Administrative Tribunal” stands, in English, for Tribunal Administrativo.
- 6.
Inafastabilidade da tutela jurisdictional is a principle often cited by the traditional literature on the Brazilian judiciary system. It refers to the fact that, in Brazil, decisions issued by administrative agencies, such as CADE, can be discussed, and in some cases have their effects cancelled, before Judicial Courts.
- 7.
There are other ancillary penalties applicable to companies (such as (a) publication of a summary of the decision in the newspapers; (b) the prohibition to enter into contracts with public banks; (c) the prohibition to take part in public bids or to enter into agreements with the government, for a minimum of 5 years; (d) the inclusion of the violator in a list of consumer offenders; (e) the recommendation for the compulsory licensing of patents held by the offender; (f) the recommendation for public authorities not to grant, or to revoke if already granted, tax payment schedules, public subsidies, or tax incentives; (g) the spin-off, transfer of control, sale of assets, or any other measure necessary for the complete cessation of the illicit behavior and its effects), as well as fines and other penalties for individuals, trade associations and other entities.
- 8.
Cartel investigations in Brazil may still last 4 to 6 years, if not more, before the administrative authority, plus 5 to 7 years before the Courts.
Acknowledgement
The authors thank Mariane Piccinin Barbieri for her support in the preparation of this document.
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© 2016 Springer International Publishing Switzerland
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Berardo, J.C.M., Becker, B.B. (2016). Brazil. In: Kilpatrick, B., Kobel, P., Këllezi, P. (eds) Compatibility of Transactional Resolutions of Antitrust Proceedings with Due Process and Fundamental Rights & Online Exhaustion of IP Rights. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-27158-3_5
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DOI: https://doi.org/10.1007/978-3-319-27158-3_5
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