Page 14 - COMPETITION LAW_Flip

14

INSTITUTIONAL PROGRESS

José Del Chiaro
Ademir Antonio Pereira Jr.
Mário André Machado Cabral
Maurilio Monteiro de Abreu

Resolution 21/18:
document access in investigations into anticompetitive conduct

After long discussions, CADE released new regulation disciplining access to
documents related to Leniency Agreements, Cease and Desist Agreements (TCC in its acronym
in Portuguese) and judicial search and seizure orders (Resolution No. 21). The new Resolution
also includes measures to foster private enforcement via civil litigation in Brazil.
The regulation was subject to lengthy discussions on how to best balance two
conflicting interests: (i) protecting incentives for companies
to sign leniency/settlement agreements with CADE and WHILE IMMEDIATELY
(ii) fostering private enforcement of antitrust law by DISCLOSING ALL DOCUMENTS
cartel victims with damage claims. While immediately SUBMITTED BY LENIENCY/
disclosing all documents submitted by leniency/settlement SETTLEMENT APPLICANTS
applicants could eliminate incentives for entering into COULD ELIMINATE INCENTIVES
such agreements, keeping all documents under secrecy FOR ENTERING INTO SUCH
for a long time could make damage recovery by cartel AGREEMENTS, KEEPING ALL
victims too difficult. DOCUMENTS UNDER SECRECY
Thus, CADE issued a new regulation FOR A LONG TIME COULD
to reduce uncertainty as to which documents the agency MAKE DAMAGE RECOVERY
BY CARTEL VICTIMS TOO
DIFFICULT.