February 23, 2016
CADE publishes an English version of its Guidelines on Competition Compliance ProgramsOn February 18, 2016, the Brazilian competition authority (Administrative Council for Economic Defense – “CADE”) released an English version of its Guidelines on Competition Compliance Programs (the “Guidelines”). The purposes of the document, which is non-binding and focuses on unilateral and collusive anticompetitive conducts, are to (i) explore the benefits of compliance programs for companies; and (ii) provide details on the do’s and don’ts that companies must consider while structuring a sound compliance program to mitigate antitrust risks arising from their commercial activities.According to the Guidelines, in addition to helping companies to substantially reduce antitrust risks, compliance programs are also beneficial to companies in the event that CADE opens an investigation against them. In such a scenario, should a company decide to settle with CADE, a fully operational compliance program within the company, or the proposition of a commitment to amend or set one up, may positively impact the discount from which the company will benefit in its fine. Moreover, if a company decides not to settle, and CADE eventually determines that such company did engage in anticompetitive behavior, the fact that it has an effective compliance program in place may be deemed as evidence of the company’s ‘bona fide,’ in which case CADE may levy a lower fine. Companies that implement ‘Sham programs’ – those that do not resonate with the companies’ corporate culture and are systematically ignored by employees – will not be entitled to the above mentioned fine-reduction benefits.Not only do the Guidelines provide details on general requirements that robust and effective compliance programs must meet, they also explore particularly relevant situations from an antitrust standpoint that are common to certain markets. One of such situations is when a company takes part in Standard-Setting Organizations (“SSOs”), which establish quality standards for products and issue certificates ensuring that companies comply with such standards.The Guidelines acknowledge the generally procompetitive nature of SSOs. By fostering security, improving the overall quality of products, and bringing transparency to the requirements that certain goods and services must comply with, SSOs increase competition and benefit consumers by lowering entry barriers, for example. The Guidelines however note that SSOs may raise antitrust concerns when they impose excessively restrictive standards, or standards that require significant up-front investments. In such circumstances, SSOs may unreasonably raise entry barriers and compromise innovation.In light of the antitrust risks associated with SSOs, the Guidelines recommend that company representatives refrain from discussing sensitive information as well as any kind of coordination matters between competitors when attending SSO meetings. Importantly, the Guidelines also suggest that, when attending meetings with competitors, company representatives should not take part in illegal activities even if they are ‘officially approved’ by the group holding the meeting, or by other interested parties. Moreover, the Guidelines recommend that companies should review all formal content issued by the SSO and that compliance teams should be immediately contacted if any illegal behavior is witnessed at SSO meetings.The Guidelines also contain suggestions on how SSOs should handle information between competitors in a manner that does not raise antitrust concerns. The Guidelines recommend that SSOs should collect information from members in an individual and confidential manner, prefer historical data, always disclose information in an aggregated form, and refrain from circulating sensitive information (e.g., current and future prices, costs, production levels, inventories). Lastly, SSOs should always use non-discriminatory criteria for admission of new members.How the Guidelines will influence future litigation involving SSOs is still uncertain.The Guidelines are available here.