Following the post by Juan David Gutiérrez R. on the 21st July, I would like to briefly summarize the main points in the OECD Peer Review of the Brazilian Antitrust Authorities.
First released on the 14th May 2010, the Peer Review began to be prepared in September 2009 and presents a widely positive view on how the Brazilian Antitrust Authorities evolved from the last evaluation in 2005, praising them for having implemented one of the best anti-cartel policies in Latin America. As in the 2005 Peer Review, the OECD takes into account the legislation, the public resources available as well as the decisions issued by the Antitrust Authorities, focusing on the evaluation of the control mechanisms, suggesting possible improvements and keeping a track of the changes in each country.
The Peer Review emphasised the positive changes in the antitrust policy since the 2005 Report. Incidentally, the Peer Review notes that the suggestions of the 2005 Peer review were used in the preparation of the Bill # 06/09, which is currently under analysis by the National Congress.
One of the main improvements between 2005-2010 was the implementation of a National Program for Antitrust Policies, which created a screening to prevent irrelevant cases from reaching the Antitrust Authorities. Currently, the majority of all business community seems to support the adopted antitrust policies. However, according to the Peer Review, such support would never be possible if the Brazilian Authorities had not shown how swift they can prosecute those who do not comply with the law. For the OECD, an evidence of this aspect is found in the favourable judicial decision in the first cartel case (steel cartel), which has finally come to an end after a ten-year litigation. The court’s decision confirmed that CADE was right and allowed it to enforce the fines of more than 52 million Reais (approximately US$29 million) imposed on three steel mills.
The report also brought 14 recommendations for the Brazilian Antitrust Authorities. Most of these recommendations require amendments in the law and are currently subject to analysis by the National Congress. Among the suggestions, one can point out the following:
- The creation of specific careers of civil servants for the antitrust agencies.
- The clatification of formal procedures for merger review as well as the adoption of the pre-merger control.
- The amendment of the legislation to allow for the financial institutions to be subject to CADE.
- The use of structural solutions rather than mere punishments for specific behaviors.