For 25 years, the Administrative Council for Economic Defense (Cade) was a great unknown among the population. This was due, in large part, to the market environment in Brazil, characterized by a history of state intervention and the fact that practically all the (few) decisions by the agency were revised or revoked in court.
This scenario changed when Law No. 8,884/1994 came into force: Cade gained institutional relevance and intensified its activities, starting to review important M&A transactions and to investigate more anticompetitive practices, notably cartels. This was the first step to effectively structure antitrust policy in Brazil. Thereafter, major cases put Cade’s name in the media: the creation of Ambev, the purchase of Kolynos by Colgate, and the merger between Nestlé and Garoto, among other transactions.
In the first decade of the 2000s (long before Operation Carwash), Cade fostered whistleblowing in Brazil, by structuring a solid leniency program that became an important tool in the fight against cartels, which began to be punished with greater rigor.
Cade's intense activities and reputation, not only at national level but also in the international antitrust community, led, as early as 2004, to a debate on the need for reform of the law then in force. The objective was to improve the institutional environment and enable the implementation of an even more vigorous antitrust policy, especially through a suspensive merger control regime.
Law No. 12,529/2011, which replaced Law No. 8,884/1994 and entered into force in 2012, enabled Cade to intervene in market structures, facilitating the prohibition of transactions that generated high market power (from 2012 to 2018, eight transactions were blocked under the new law, the same number of transactions blocked during the life of Law No. 8,884/1994). The change also unified departments, consolidating the functions of investigation and decision within a same agency, and giving greater speed to reviews of acts of concentration. In subsequent years, cartel investigations were driven not only by the signing of leniency agreements but also by new incentives for signing settlement agreements.
Three times Cade was considered the best antitrust agency in the Americas by Global Competition Review (GCR) and, more recently, accepted as a permanent member on the Competition Committee of the Organization for Economic Cooperation and Development (OECD).
The advances made by Cade in the last 25 years have clearly increased its challenges: shortening the duration of investigations of antitrust violations; increasing transparency as to the methodology used to calculate fines in cartel cases; enhancement of its settlement and leniency policy (especially after the cases involving Operation Carwash) to secure deterrence effects; and the formation of a critical mass for the review of practices adopted by dominant companies in order to guide the market on the legality of certain commercial strategies.
