Cartel Workshop – Panama 2012 Cartel Case Initiation Diogo Thomson Deputy Superintendent of CADE - Brazil

1. Cartel Workshop – Panama 2012 Cartel Case Initiation Diogo Thomson DeputySuperintendentof CADE - Brazil

2. Possible ways to start a cartel case in Brazil • Formal Complaint; • Informal complaints: anonymous, email, complaint-click, verbal, consultations with other institutions, petition right; • Complaint by other organizations (government bodies, public prosecutors, federal police, NGOs, consumer agencies); • Ex officio; • Leniency; • Art. 66, §6 Law no. 12.529/11 – formal complaint made by the National Congress Commission, the Deputy Chamber, the Senate, SEAE – Ministry of Economy, Regulatory agencies and CADE´s Legal Service

3. Most common ways of case initation in Brazil • Formal Complaint - More usual for unilateral cases than for cartels; - It´s confidential while being screened and during a period of better assessment and investigation of the facts (it can be done informally or formally through preparatory procedure or administrative inquiry), before the opening of administrative proceedings; - After the beginning of the investigation the complainant becomes the interested party, without any procedural rights nevertheless.

4. Most common ways of case initiation in Brazil • Ex officio: - When a complaint or a notice by other organization does not contain all the necessary elements to open a file immediately or, at least, to allow a dawn raid authorization; - Anonymous complaint, media news or public facts may be the tip-off for an ex officio screening, market study and/or investigation of facts that could be evidence of cartel; - Typical ways: After sector inquiries and market studies.

5. Most common ways of case initiation in Brazil • Leniency -33 cases started by leniency since 2003. 10 in 2012. (Mainly international cartel cases) -28 still processing within General Superintendence (25% of total ongoing cartel cases). Incentives for leniency in Brazil: -Immunity for administrative and criminal sanctions of cartel. After L. 12529/11, criminal immunity also for bid rigging cartels and other related public procurement frauds and gang crime. -Transparency of requirements and of the access to authorities -Increase of International reputation of Brazil authorities and leniency program

6. Most common ways of case initation in Brazil • Leniency (cont.) Advantages of a case started by leniency: -Confession -Cooperation during the investigation and after the open of the file until judgment. -Better description and assessment of facts and evidences and better preparation for searches and inspections Main Challenges of the Program in Brazil: -Interplay with settlements and with other cooperative defendants (2nd and 3rd in) -Program outreach for national cartels (mainly bid rigging, smaller and business and regional markets) -Deal with another crimes and administrative infringements unreached by immunity: corruption, bribery, money laundry, etc..

7. CADE´s new structure and cartel case initiation • Before - Two different authorities (SDE and CADE) SDE - Leniency: Negotiated only by the Secretary of Economic Law and his chief of staff. - Other ways of initiation: Short screening by the Director of the Antitrust Division office and then the case was sent to one of the division’s units. - Units: the 6 units were responsible for the preliminary investigations. Also the unit decided whether to propose the opening of a file or to dismiss a case. Finally, the same unit instructed the case after the opening. -Difficulties: scarce resources from lack of specialization, which resulted in a less efficient and slow responses to the complaints, raise in the amount of time a proceeding stayed in the unit, increase in the total backlog related to the unit having to handle less relevant matters, and difficulties in prioritizing and case management. CADE - delay in judgments: priority “competition” between post-merger notification cases and cartel and other conduct cases

8. CADE´s new structure and cartel case initiation • After Law 12.529/11 One authority: CADE General Superintendence (GS): Investigation and instruction Tribunal: Tribunal judges only challenged mergers and Administrative Proceedings. • Cartel Case Initiation: General Superintendence: - 4 Special Units at superintendent´s office: Leniency (Deputy Superintendent, Chief of Staff and senior officers); Intelligence, Operations and Strategic Information (senior officers and IT LAB) Screening/Prioritizing/Triage (Deputy Superintendents and senior officers); Special Projects. - 3 Cartel thematic specialized units: a) bid rigging cartels; b) international cartels; c) national hard core cartels and subsidiary.

9. CADE´s new structure and cartel case initiation GS office units do all the initiation procedures from leniency (when it exists) to dawn raids or formal opening of the proceeding, working in active interaction to: a) define and apply prioritizing; b) screen and reject of complaints; c) decide to do dawn raids, searches, inspections and other measures; d) rank the complaints; e) contact other investigative partners and other sectors of CADE, for instance economic studies department and the legal service; f) make intelligence reports and build databases and IT solutions. Advantages: Specialized staff in each phase of the initiation until the opening of the file working in interactive way allows better results. Thematic cartel’s specialized units in charge only of instruction of the opened administrative proceedings may be more efficient in the analysis of evidences and defenses and give fast and better conclusions.

10. For Discussion/Open Questions • How to deal with... • Scarce resources • Duty to investigate • Rejection of complaints vs. Policy Priorities • Incentives to leniency • Confidentiality until the dawn raid and/or opening the file • Intelligence and IT solutions In order to reach: • Best assessment of complaints • More efficient, accurate and fast enforcement (reputation); • Increase the number and variety of leniency applications; • Ensure right to due process and proportional punishment; • Less susceptible cases to judicial review

11. Thank You diogo.andrade@cade.gov.br