CADE approves a resolution that set procedures to access documents of antitrust investigations

The Court of the Administrative Council for Economic Defense (CADE, in its acronym in Portuguese) approved, in the session of September 5th, the Resolution 21/2018, which regulates procedures to access documents and information contained in administrative proceedings that impose sanctions to violations to the economic order, such as those originated from leniency agreements, Cease and Desist Agreements (TCCs, in its acronym in Portuguese) and dawn raids.

The standard stipulates that the documents and information contained in these procedures be open to public access. However, a few exceptions will be maintained as restricted even after the Court’s final decision, and will not be made available for public consultation.

Among the exceptions, it is important to underscore the Anticompetitive Conduct Records (HC, in its acronym in Portuguese) and their  additive terms. They were elaborated by the General Superintendence (SG) based on self-accusatory documentsand information voluntarily  submitted  during the negotiations of leniency agreements and TCCs. The HC, from now on, shall be restricted to preserve the conduction of negotiations with the autarchy.

The resolution also establishes exceptional conditions for granting access to other restricted documents, such as when there is a specific legal determination or judicial decision. The access is also possible  through international juridical cooperation and authorization of the TCC signing parties, both with CADE’s consent, as long as there is no prejudice to ongoing investigations.

“CADE, jointly with the society, takes another step forward in the direction of increasing the  efficiency in  its performance as a competition defense authority in Brazil. It is an important  opening for the private enforcement path in the antitrust legislation of this country. With the publication of the resolution, we establish clearer rules to documents and information sharing regarding competitive infringements, in order to encourage private prosecution”, evaluated Alexandre Barreto, president of the autarchy.

Sanctions such as administrative, civil and criminal liability are provided to those who disclose or share with third parties the restricted information referred to in the resolution.

Public Consultation

The draft of the resolution was submitted to public consultation for society´s contribution. The version approved by the Court is the result of many collaborations considered by CADE to the final text.

“We counted on the invaluable collaboration and help from members of the antitrust community that actively work in our country. Through this interaction, I believe that we’ve found a satisfying balance”, pointed out the president.

Attenuating Condition

Among the dispositions of the resolution, it is stated that the General-Superintendence and CADE’s Court might consider as attenuating conditions – for decreasing both the pecuniary contribution in TCC negotiations and the administrative fees applied to competitive infringements – the proofs of judicial or extrajudicial refunds in the context of remedial actions for damages caused to parties potentially harmed by the violation of the economic order.