10 Due Process of Law and the Brazilian Antitrust Agency

Subject(s):

Fair, reasonable, and non-discriminatory terms (FRAND) — Unfair trading conditions — Basic principles of competition law — Enforcement and procedure

This chapter provides an overview of the Brazilian antitrust legislation and practice from the standpoint of procedural fairness. It begins with a summary of the legislative evolution that led to the current antitrust regulation in Brazil. It then discusses the main aspects of the rules in place, provided by Law n. 12,529 of 2011. Finally, the main part of the chapter addresses the guarantees of procedural fairness in administrative proceedings held before the Brazilian antitrust agency and the important role Brazilian courts play in this scenario. Brazil's first antitrust agency, the Administrative Commission for Economic Defense (CADE), was created by Executive Order n. 7,666. CADE supervised markets, fined illegal practices — including those against national economy — and authorized mergers. The Brazilian Constitution, laws, and regulations guarantee that CADE respects due process of law in all its proceedings, and the agency has taken this duty seriously.