On the 6th October 2011, I posted that the Brazilian National Congress has finally voted the bill aiming at a broad reform in the Brazilian Antitrust Law. I thought it was just a matter of two weeks until President Dilma Roussef would enact the new piece of law. However, the rule-making process is not so simple! The days following the approval, many rumours spread about what had been actually voted. One of them referred to the fine to be imposed on cartels. Now, it seems that Brazil’s rulemaking process heads towards its conclusion once more: the final text approved by the National Congress was made available yesterday.
As regards the fine on antitrust violations, the final text allows the CADE to impose a fine from 0,1% to 20% of the gross turnover of the company, group or conglomerate in the year before the commencement of the investigations – this will be limited to the «ramo de atividade empresarial» («branch of the business industry»): whether the change will mean a decrease or an increase in the antitrust enforcement, this is still to be seen. Also, exclusive dealing agreements no longer are in the section listing the most common antitrust violations. Another controversial point is the inspection, which empowers the Antitrust Authorities to «inspect» the premises of a company without a judicial order and without a 24-hour prior notice: there are serious allegations that the rule is not constitutional.
For those who are interested to read the final text approved by the Brazilian National Congress, but which still needs to be vetoed and enacted by President Dilma Roussef, click here.