CADE publishes cartel-sentencing guidelines

On 12 September, the Administrative Council for Economic Defense (CADE) released its cartel-sentencing guidelines. The guide aims to establish the criteria on how the Brazilian antitrust authority imposes sanctions for cartel practices.

The document presents methodology used by the Tribunal to determine the appropriate level of penalty for cartels, based on the case law regarding the sanctions imposed by the agency between January 2012 and December 2022.

The guide has five sections. There is one referring to steps used by CADE to settle the amount of fines imposed to companies, associations, unions, and individuals convicted for cartel practices. Another section brings information about alternative sanctions to the monetary biased ones, under the antitrust legislation, for example, the prohibition from participating in government procurements.

To impose sanctions, authorities of CADE consider the anticompetitive conduct itself and other factors that may affect the fine calculation. "In case of imposition of fines, it is essential to be clear about the criteria adopted, especially for base fines and tax rates. Furthermore, the fines should be proportional by determining required, adequate, and sufficient dissuasive actions to withdraw incentives to economic agents, whether individuals or firms, from taking part in the anticompetitive conduct reviewed", as mentioned in an excerpt of the document.

For Alexandre Cordeiro, president of CADE, the guide provides parties and society with more information on how the Brazilian authority imposes sanctions for cartel practices. "The document is a relevant tool for people who work with competition defence in Brazil, as it is a symbol of a significant milestone in the fulfilment of our institutional mission, ensuring that the review process of anticompetitive conducts is clear and transparent", he stated. 

The guide is not a rule and does not change the Statute of CADE, Resolution no. 3/2012 or Law 12529/2011. The practices and procedures presented might change, depending on the specific circumstances of actual cases.

Access the Guide for Cartel Penalties.