1. the antitrust administrative proceedings
Discovery in Brazil:
the antitrust administrative proceedings
ICN Webinar, September 14th, 2016
Amanda Athayde Linhares Martins
Chief of Staff of the General Superintendence (Leniency Office)

2. Agenda 1. Legal Framework on Cartels in Brazil
2. General discovery in the administrative proceedings
3. Discovery in the antitrust administrative proceedings
4. Recent administrative and judicial experience
5. Possible outcomes in the short run

3. 1. Legal Framework on Cartels in Brazil
Cartel as a administrative violation:
Law /2011 (“Antitrust Law”)
General Superintendence of CADE
Prosecution: Companies and individuals
Judgment: CADE’s Tribunal
Cartel as a criminal violation:
Law 8.137/1990 (“Economic Crimes Law”)
Public prosecutors (Federal and/or State)
Prosecution: Only individuals
Judgment: Criminal judge
Cooperation inside Brazil : General Controller

4. 2. General discovery in the administrative proceedings
As a general rule, the administrative proceedings are public in Brazil (Federal Constitution, art. 5o) – “broad discovery”
However, there are legal exceptions (“strict discovery”):
Intimacy and public interest (General Law of Administrative Proceedings)
Information that might provide competitive advantage to other economic agents or compromise intelligence activities, investigation or ongoing inspections related to the prevention or punishment of infractions (Information Access Law – “FOIA”)

5. 3. Discovery in the antitrust administrative proceedings
Before opening the antitrust administrative proceeding (“strict confidentiality”)
Leniency
The marker and the entire negotiation are confidential
Possibilities: (i) waiver and (ii) applicant request to make it public with Cade’s authorization
Cease-and-Desist Agreements
Dawn Raids
Maximum level of secrecy requested to the judge, maintained after the conclusion of the dawn raid

6. 3. Discovery in the antitrust administrative proceedings
During the investigation in the antitrust administrative proceeding
‘public’
‘restricted access’ (whenever the access is restricted to some of the parts involved in the case)
‘confidential’ (whenever the access is restricted to public authorities)
‘investigation secrecy’ (whenever the access to information is limited by a judicial decision)
Public file
Restricted file
(CADE and all defendants)
(CADE and defendant A)
(CADE and defendant B)
(CADE only)
(CADE and defendant C)
Only for defense purposes!

7. 3. Discovery in the antitrust administrative proceedings
After the judgement of the antitrust administrative proceeding by CADE’s Tribunal
Commissioner(s)’s vote(s)
Includes all the necessary information to prove the cartel, which may include documents and information originated from Leniency, Cease-and-Desist and dawn-raids
All the other documents should be classified:
‘public’
‘restricted access’ (whenever the access is restricted to some of the parts involved in the case)
‘confidential’ (whenever the access is restricted to public authorities)
‘investigation secrecy’ (whenever the access to information is limited by a judicial decision)
Third parties may have access to ‘restricted access’ documents only upon final ruling of a Brazilian judge of due to legal obligation

8. 4. Recent administrative and judicial experience
Administrative Experience:
Some leniency applicants are actively asking for their identity to become public
“Car Wash Operation - Petrobras”: public documents during the antitrust administrative investigation
Judicial Experience:
The “metro case”: after a dawn raid, a federal judge in São Paulo decided to open the information and documents of the leniency applicant, justifying it by the “public interest”. Afterwards, it was overruled.
The “compressors case”: private damages lawsuit in which the Superior Court of Justice ruled that in special circumstances, during the investigation in the Administrative Proceeding, CADE may have to provide the documents and information (similar to the Pfleiderer case in EU?) (pending final judgment)

9. 5. Possible outcomes in the short run
Benchmarking
USA, EU, UK, Germany, the Netherlands, Australia, Canada, etc.
New Regulation: Public and Private Enforcement
Foster the private damage lawsuits in Brazil
Maintain the incentives for the Leniency and Cease-and-Desist Programs
Clarify the discovery rules in the antitrust administrative proceedings
Propose some legal modifications in the Competition Law, focused on the following issues:
Extent of the civil liability
Limitation Periods

10. Thank you! Obrigada! Amanda Athayde amanda.martins@cade.gov.br