Who Must Fear the Brazilian Antitrust Authority? The Control of Cartels and Monopolies in Brazil During the Last 10 Years (1998-2007)

Abstract

Since the enactment of Law No. 8.884, of June 11, 2004, a new legal antitrust framework came into place in Brazil, setting into motion the government's objectives of enhancing the competitiveness of the Brazilian economy. In this article we try to answer the question: Who fears the Brazilian Antitrust Authority? The possible answer to this question was sought in the decisions handed down by the Brazilian antitrust authority in the course of all the administrative proceedings that took place during the last 10 years (1997-2007). Assessing the available data collected by an extensive jurisprudence research, we decomposed the question above into the following specific questionings: (i) What were the illicit behaviors subject to greater punishment?; (ii) Who was more frequently punished?; (iii) In which economic sectors illicit behaviors were more condemned?; and, finally (iv) Did the Brazilian antitrust authority care about signaling its decisions to the economic agents ? In light of the data collected we could observe that (i) the condemnations of the Brazilian antitrust authority usually punished behaviors in very general grounds, i.e. diminishing or imposing limitations to the free concurrence; (ii) enterprises and entrepreneurs were less subject to condemnations than associations and class unions; (iii) the health sector concentrated a much more extensive number of condemnations than any other economic sector; (iv) the Brazilian antitrust authority showed an increasingly concern about the importance of the obligation to disclosure the content of decision previously handed down.