Concurrences

Compliance programs and abuse of dominance practices under Brazilian competition law – A roadmap for compliance monitors

Mr. Oliveira Fernandes’ initiative consists of an article dealing with "Compliance programs and abuse of dominance practices under Brazilian competition law – A roadmap for compliance monitors." The Brazilian antitrust authority (Portuguese acronym CADE) has been following a worldwide trend in encouraging the adoption of competition law compliance programs. Nevertheless, one can see an apparent policy gap in the current optimal incentives for compliance program adoption in antitrust enforcement. While programs aimed to detect cartels are being increasingly rewarded with reductions in fines for antitrust infringements imposed by the competition authority, there is still little guidance on how compliance programs should be structured to detect prior and avoid abuse of dominance practices. As CADE’s approach to monopolization practices has relied on a variety of presumptions of lawfulness, this article explores three main elements that should be incorporated into an effective antitrust compliance program aimed to prevent monopolization: (i) a conservative assessment of market power; (ii) a strict and proportional standard for measuring efficiency justifications and (iii) a viable mechanism for submitting consultations to CADE’s Tribunal.

Testimonials

Georg Götz
Justus Liebig University Giessen

Germany

I congratulate Concurrences on their timely initiative of the Antitrust Compliance Summit & Awards. To highlight the importance of antitrust compliance at this moment is very welcome as we know that firms and managers are particularly tempted to engage in anticompetitive and collusive practices in times of crises.
Daniel Sokol
University of Florida - Levin College of Law (Gainesville)

United States 1 contribution 1646 visits

Compliance plays an integral role in antitrust/competition law and this initiative recognizes its growing centrality.
Dirk Middelschulte
Unilever (Brussels)

Belgium 2 contributions 1085 visits

From being a fringe activity for the legal profession, competition law compliance has become a key pillar of good corporate citizenship over the last 15 years or so. So much legal expertise, business insight and creativity goes into ever-more sophisticated and bespoke compliance programs. It is about time to recognize outstanding accomplishments in this important field, and I am very pleased that Concurrences has given me a chance to support their initiative.
Isolde Goggin
Irish Competition Authority (Dublin)

Ireland

I am delighted to join the jury panel for the 2021 Antitrust Compliance Global Summit & Awards. The Summit creates an important platform to acknowledge the challenges faced in the last year whilst the Awards allow us to recognize the achievements of those who have overcome such challenges and are producing great work despite the odds. Events such as the Antitrust Compliance Global Summit & Awards are an excellent opportunity for agencies across the world, particularly the smaller ones, to inspire each other by sharing their innovative ideas, discussing best practice and highlighting their successes. I look forward to seeing you in January!
Carolina Araújo de Andrade
Brazilian Administrative Council for Economic Defense (CADE) (Brasilia)

Brazil

You have probably heard that it is much better to be safe than sorry. This maxim, applicable to so many situations, can also be used when we discuss corruption, since the act of anticipating situations prevents they spread through public or private companies. Corruption, besides compromising the money of entities, whether public or private, also puts their reputation at stake. On the other hand, compliance programs may establish an organizational culture that encourages ethical conduct and a commitment to comply with the organization’s internal and external standards. In this way, they promote the fight against corruption and reduce the number of lawsuits and administrative proceedings, as well as the chances of financial losses. Experience shows that an effective compliance program can bring about great results. By adopting such programs, we ensure the maintenance of competition in the market and prevent the emergence of violations and harm caused by the lack of competition. Moreover, if we keep a company from losing value, it certainly creates benefits to the entire supply chain, that is, the company itself, investors, consumers, trading partners, and even authorities, as prevention is always preferable to repression, incurring lower costs to society. In view of this, it is important to recognize initiatives that aim to foster and encourage companies to have robust compliance programs that are capable of mapping risks and minimizing the practice of illegal acts, whether these are related to competition law or other matters.

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Testimonials