After a turbulent period, due to lack of a quorum at the Administrative Court, the Administrative Council for Economic Defense (Cade) begins its work in 2020 with four new commissioners on the tribunal and renewed energy at the Superintendency General, following the reappointment of the superintendent in October.

This year a more diversified performance by the agency is expected, increasingly closer to the other actors involved in promoting the current economic agenda in strategic sectors and that goes beyond the traditional functions of investigation of violations of the economic order and review of mergers.

Cade's actions in regulated sectors should gain more relevance in the face of joint action projects with other agencies. In the financial sector, for example, Cade and the Central Bank of Brazil have been holding discussions on fintechs, the implementation of open banking, and the adoption of regulatory sandboxes to promote innovations in the financial system and foster competition in the banking market. In the aviation sector, the agency should act on the revision of the rules on distribution of time slots at airports.

Cade has expressed growing concern about the possible anti-competitive effects of conduct related to practices and fees charged at public ports. In the telecommunications sector, the agency publicly expressed its intent to participate in the discussions on the auction of 5th generation mobile telephony.

It is also possible that Cade will reinforce its direct action in promoting competition in regulated sectors, a move that began in 2019 with the signing of cease and desist consents to close investigations against Petrobras. At the time, the company committed to sell refineries and assets related to the natural gas market, in addition to taking over ancillary commitments to solve problems in the gas market.

With regard to the prosecution of anticompetitive conduct, Cade intends to publish in the coming months a penalty guide to spell out the criteria for determining the penalties applied in the trial of administrative proceedings. The measure takes place in the context of discussions at the Administrative Court on a lack of uniformity and robustness in the decisions of the agency and on the need to take into account the advantage gained by offenders in setting parameters for fines for formation of a cartel.

Cade should also intensify and improve investigations of unilateral conduct, especially in the financial sector, where several practices related to means of payment are already in the agency's sights. The same should happen in relation to the issue of cartels in public bids, thanks to the consolidation of institutional partnerships with state public prosecution services and the use of artificial intelligence tools to search for evidence of anticompetitive activities in public procurement databases.

It is also expected that CADE will more effectively encourage private suits in the Judiciary for damages for competitive violations. In November of 2019 the agency issued an ordinance regulating the procedures  provided for in a resolution published in 2018, for interested third parties to access documents and information contained in administrative cases,

In mergers, Cade will play an important role in review the competitive effects of transactions that occur in the federal government's privatization program in the coming years. The agency has sought to increase and empower its staff to maintain speed in review of cases.

In line with the actions of international antitrust agencies, Cade has devoted much attention to transactions between companies operating in digital markets, whose competitive risks tend not to be identified and measured by traditional analytical tools. In general, the parts of these transactions do not meet the legal reporting requirement. Given the growing relevance of the digital economy and the need to form a critical mass to define its policy of action and intervention in highly dynamic markets, it is possible that CADE will require reporting of some of these transactions in the coming years, exercising an option provided for in the Competition Law that has thus far been used sparingly.