Assessment Of The First Year Of The New Antitrust Law

Bruno De Luca Drago1

May 29, 2013 will be remarked as the first anniversary of Law 12.529/11, which is the new Antitrust Law. However, prior to a brief discussion on the achievements and challenges of the new legislation, it is worth acknowledging that albeit all the skepticism about its implementation, this first year had a quite positive balance.

Initially, due mention must be made to the Multi-year Plan (PPA), which is intended to improve the Brazilian Antitrust System (SBDC) and the restructuring of the Brazilian Antitrust Agency (CADE). The objectives of the program include the establishment of partnerships with other governmental agencies and international entities and the improvement of the antitrust agency's investigation procedures. The established agenda includes the implementation of laboratories for analysis and investigation of cartels in all regions of the country, a 50% reduction in the inventory of investigations on the fuel and health sectors, review of the instruction procedures to reduce processing time and review of leniency and compliance programs.

The analysis of CADE's new operational structure shows that its subdivision in Administrative Court, General Superintendence and Economic Studies Department made the authorities' work more efficient and faster, to the extent that duplicate analysis are no longer performed. CADE is also sorting submitted cases more efficiently, assigning them according to the nature of the procedure and sector involved, which created a certain degree of expertise in the several subjects comprised by the System.

As to the activities by the Economic Monitoring Office (SEAE), with its residual duty to defend competition, there is a perception that little has been done to this effect, perhaps because of the lack of more capable tools to this purpose. Consequently, further planning, activities and discussions with the most diverse agencies and institutions are expected from SEAE, not only to alert to the side effects of new regulatory or executive acts, but also to defend the required adjustments. A good start would be for SEAE to have a permanent and institutional contact with the House of Representatives, specifically the Economic Monitoring, and Constitution, Justice and Citizenship Commissions, to review and assist in the discussion of federal legislative acts. Likewise, SEAE's further contacts with the various regulatory agencies, which invariably must address free competition issues in their ex ante activities, would be welcome.

In what is envisaged as the deepest change by the new law - the introduction of a pre-merger control system -...