1. Antitrust Section of the Brazilian Bar Association (OAB-SP)
Parental Liability Under the Brazilian Perspective Daniel O. Andreoli and Joyce M. Honda
Antitrust Section of the Brazilian Bar Association (OAB-SP)
Parental Liability in Brazil
Joint liability among the companies, a distinct joint liability between the officers.
2) Concept of “undertaking” in Brazil
In Brazilian antitrust system, there is not a precise definition of economic group for conduct control. Nevertheless, in relation to the control structure, it includes: (i) companies which share common control; and (ii) companies in which the companies with common control have, at least, 20% of the corporate participation.
4) Parental liability to an undertaking that is made up by several legal entities
In Brazil, any company of the same group might be prosecuted for an economic violation based on the identification of an “economy unit of the decision making center”. It has been seen as a characteristic created by the Brazilian Competition Law to allow the collection of the fine amount from whichever entity is easier to the authorities;
8) Consequences of parental liability in Brazil
Legal entities/companies which committed the infringement can be joint and severally liable for fines with intermediate companies and the ultimate parent company;
Legal maximum/limitation (cap) of the aggregate sales for the total amount of the fine to be imposed to the whole group: Fines vary from one tenth percent (0.1%) to twenty percent (20%) of the gross turnover of the company, group or conglomerate earned in the last fiscal year prior to the launch of the administrative proceeding in the business activity in which the infringement took place;
Higher risk of recidivism: In the event of recidivism (taking the economic group as a relevant criterion), the amount of the fines shall be doubled, according to the Brazilian Competition Law.