The Brazilian antitrust agencies have begun to formalize various Cooperation Agreements for the purpose of proceeding with the investigations related to antitrust violations. These agreements have been entered into, for example, with the Federal Ministry of Public Prosecution and Defense (MPF), State Ministries of Public Prosecution and Defense (MPE), and the Federal Police, and Cooperation Agreements have been executed with Argentina and the United States. Others are yet to come. All these Cooperation Agreements are aimed at investigating information on acts that may be considered anticompetitive.
Companies and especially their managers should pay special attention to the business practices adopted, which—depending on the position the company holds—could be considered under Law 8884/94 ("Antitrust Act") and other legislation.
Managers should know their responsibilities to the market and the community from an antitrust perspective and adopt a policy of prevention, which should be known to all employees, suppliers, managers, etc. They should know the law and adhere to the policy for best practices in antitrust matters. This is why it is essential to adopt a Compliance Program.
Under art. 20 of Law 8884/94, an antitrust violation is any act, regardless of fault, meant or able to produce, even if unsuccessful, effects such as limiting, falsifying, or otherwise hindering free competition; dominating a relevant market for goods or services; arbitrarily increasing profits; etc.
Art. 21 exemplifies certain practices that could be considered anticompetitive, including forming cartels, price fixing with competitors, division of markets, etc.
We have emphasized in our talks that managers can be held personally liable for such violations, which—if evidenced—could lead to objective liability, i.e. regardless of fault, subject to the penalties under the law.
It is fundamental to adopt a "Compliance Check List" and prepare an "Improved Practices Policy," especially if the company has a high market share. Thus, the "Check List" accompanied by the respective "Compliance Check List" should address, for example, aspects such as who the key sales personnel are. Are they familiar with the antitrust laws? What is the company’s position in the market? What is the status of the company’s contracts with suppliers, distributors, etc.? Who participates in the professional associations that represent the company?
Accordingly, adopting Antitrust Prevention Programs should be a priority for companies and their managers, who—we again remind you—are liable in the civil and criminal spheres for illicit acts of an antitrust nature.
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