Brazil: What Rights Do Defendants Have In Antitrust Investigations In Brazil?

Last Updated: 16 May 2019
Article by Mariana Villela, Rodrigo Santos and Vinicius Da Silva Cardoso
Most Read Contributor in Brazil, July 2019

1. Introduction

The Administrative Council for Economic Defense (CADE) is an adjudicatory administrative entity with jurisdiction to investigate, prosecute and judge anticompetitive conducts. While CADE's Tribunal is responsible for deciding the cases, CADE's General-Superintendence (GS) concentrates all tasks related to investigation and prosecution of anticompetitive conduct.

As these two tasks are carried out by two bodies within the same agency and as the line between them may sometimes be blurred, the Brazilian Antitrust Law provides for three types of administrative procedures that the GS may use to investigate possible anticompetitive conduct, with different levels of investigative and prosecution powers and different levels of rights granted to the investigated parties

Considering this peculiarity of the Brazilian Antitrust System, the following section provides an overview of the rights of defendants in each of the three types of administrative procedures provided by the Brazilian Antitrust Law: (i) the preparatory proceeding; (ii) the administrative inquiry; and (iii) administrative proceeding.

2. Types of administrative procedures and rights of defendants1

2.1 Preparatory proceeding

The GS may initiate a preparatory proceeding (procedimento preparatório) to verify if a certain conduct falls under the jurisdiction of the Brazilian Antitrust authorities and if it may qualify as a violation to the economic order (i.e., a violation to the Brazilian Antitrust Law). The GS must conclude this phase of the investigation in up to 30 days2.

Preparatory proceedings are confidential, unless the GS orders otherwise3; therefore, during this phase, defendants do not have the right to know that they are being investigated. However, if a defendant finds out about the proceeding, it will have the right to request access to the records to the GS4, even though the defendant may not necessarily have access to the case files.

Depending on its conclusions at the end of the preliminary proceeding, the GS may decide to close the investigation – if it finds that the conduct is not subject to the jurisdiction of the Brazilian Antitrust authorities-, may initiate an administrative inquiry or, if it has sufficient evidence that an antitrust violation took place, may initiate an administrative proceeding.

2.2 Administrative inquiry

The administrative inquiry (inquérito administrativo) is a preliminary investigatory procedure of inquisitorial nature initiated by the GS to investigate possible violations of the economic order when the evidence already gathered by the GS is not enough to initiate an in-depth investigation (which would take place in an administrative proceeding).

According to Article 66, Paragraph 9, of the Brazilian Antitrust Law, the administrative inquiry must be concluded within 180 days, but may be extended for 60 more days when the analyzed conducts are complex or when justified by the circumstances of the case. Although the Law provides for a total duration of 240 days for the administrative inquiry, the GS usually extends the investigation for several 60-day periods, at times making the administrative inquiry last several years, which may be legally questioned.

As a rule, administrative inquiries are non-confidential, but the GS may order otherwise5; for this reason, defendants do not have the right to know that they are being investigated. It is usual, during the administrative inquiry, for the GS to request information to the parties under investigation; in these cases, defendants will be able to submit written statements to the GS, and even request meetings with case handlers. Defendants may also request access to the case files when the investigation is confidential, in which case the GS may decide whether or not to grant access. Should the GS reject the access of defendants to the case files, they may resort to lawsuits before Courts of Law.

The dawn raids carried out by the GS (with the assistance of the Federal Police and the Federal Prosecution Office) to gather evidence usually take place during the administrative inquiry proceedings. Since dawn raids need to be authorized by the courts, CADE will assume that they are legitimate and legal and, thus, a defendant will not be able to challenge the raid directly at CADE; however, defendants may challenge the raids at Courts of Law.

2.3 Administrative proceeding

The administrative proceeding is an in-depth investigation that may be initiated by the GS from the outset, if it concludes that there is sufficient evidence of an antitrust violation, or after the conclusion of an administrative inquiry which indicates sufficient indication of the existence of a violation.

The Brazilian Antitrust Law provides that the administrative proceeding is an adversary proceeding, which aims to guarantee full rights of defense to the defendants6. This is the phase of antitrust investigations where defendants have the opportunity of exercising a broader range of their procedural and substantive defense rights.

To advance with an administrative proceeding, the GS must formally notify all defendants regarding the initiation of the proceeding7. The deadline to submit defenses usually starts when all defendants are properly served of process. Defendants who have been served of process may access the case files, review documents, and make submissions and/or meet with CADE officials to discuss the case.

The notice sent by the GS to serve the defendants of process must contain the entire contents of the decision that determined the initiation of the administrative proceeding8, if it does not, it may be declared null and void9, demanding that the GS issue a new notification to properly serve the defendants of process.

Defendants have the right to submit a written defense to CADE within thirty days after CADE concludes notifying all defendants10. In investigations involving more than one defendant and in which the defendants have different attorneys, this deadline is counted in double11. Additionally, all defendants may request an extension of ten days to the deadline12, which the GS must grant, allowing up to forty days (or seventy days, in case of multiple defendants with different attorneys) to submit their defenses to CADE, counted from the date in which the GS confirms that the last defendant has been served of process.

In the written defense, defendants may raise all legal (procedural and substantive), factual and economic arguments they see fit. They may also submit legal or economic opinions, documents that help clarify the facts and appoint up to three witnesses. If the GS accepts the request for the hearing of witnesses, the GS must previously designate a date and time for the hearings, and all defendants will have the right to attend them and address questions to the witnesses.

If a defendant fails to submit its defense within the deadline, the defendant will be considered at default13. If the defendant remains at default throughout the investigation and does not submit any defense to CADE, all facts imputed against the defendant will be considered true. However, the defendant may submit written motions to CADE at any point during the investigation14, which CADE will take into consideration in respect to the principle of the real truth (princípio da verdade real) and to the principle of full right of defense (princípio da ampla defesa).

Once the SG concludes its analysis in the administrative proceeding, it will issue its opinion on the merits and on the procedural matters of the case, and send its recommendation to CADE's Tribunal, where the investigation will be randomly distributed to a reporting Commissioner. At the Tribunal phase of the investigation, defendants will have the right to submit written statements at any time and will be granted a specific moment – before the judgement of the case – to submit their closing arguments. Defendants also have the right to meet with all Commissioners to discuss the case, and defendants may request to present oral closing arguments to the Tribunal during the judgement session, before the judgement of the case.

Defendants may not appeal against the Tribunal's decision at the Federal Administration level15; but they may submit motions for clarification related to any obscurity, omissions or contradictions in the decision16. In these situations, defendants will have five days to submit their motions after the decision is published, and the deadline will be counted in double if they have different attorneys in the case.

Although the Brazilian Antitrust Law does not provide for any appeals, CADE's Internal Regulation states that defendants may request the reappreciation of the case in up to fifteen days following the publication of the decision if there are new facts or documents that are capable of altering the decision.17 These requests, however, are rarely granted.

As set out by the Brazilian Constitution, defendants in antitrust investigations – and in investigations of any nature – may always resort to lawsuits in Courts of Law if they believe any of their rights have been violated and may also challenge CADE's decisions before Courts of Law.18 This possibility is available to defendants during all phases of antitrust investigations.

3. Conclusion

The Brazilian legal system generally awards defendants wide defense rights related to administrative or criminal investigations, and this is also the case in antitrust investigations. In fact, the Brazilian Constitution states that defendants are entitled to wide defense, due process and adversary rights and must have access to all means necessary to exercise them.19

Based on this provision, the Brazilian Antitrust Law and CADE's Internal Regulation provide for wide access to case files, accusation documents, case handlers, and CADE's practice has established the formidable tradition of accepting all written statements from defendants before a final decision is rendered, regardless of the phase of the investigation in which they are presented.

In any case, if defendants understand that their rights have been violated during an antitrust investigation, they have the right to challenge the harmful act in a Court of Law, whose decision will prevail over any act issued by CADE.


 1 As discussed in several articles in this book, defendants have the right to submit settlement agreement proposals to CADE even at late stages of the investigations. Given that this topic is the object of other chapters in the book, we will not describe these procedures in this chapter.

2 Article 66, paragraph 3, of the Brazilian Antitrust Law.   3 Article 179, Paragraph 1 of CADE's Internal Regulation.

4 Article 5, XXXIV (b) and LV of the Brazilian Federal Constitution.

5 Article 181, Paragraph 1 of CADE's Internal Regulation.

6 Idem.

7 Article 70 of the Brazilian Antitrust Law.

8 Article 70, paragraph 1, of the Brazilian Antitrust Law.

9 Article 26, paragraph 5, of Law N. 9,784/1999.

10 Article 70 of the Brazilian Antitrust Law.

11 Article 102, item IV, of CADE's Internal Regulation.

12 Article 70, paragraph 5, of the Brazilian Antitrust Law.

13 Article 71 of the Brazilian Antitrust Law.

14 Article 71, sole paragraph, of the Brazilian Antitrust Law.

15 Article 9, paragraph 2, of the Brazilian Antitrust Law.

16 Article 259 of CADE's Internal Regulation.

17 Article 263 of CADE's Internal Regulation.

18 Article 5, item XXXV, of the Brazilian Constitution.

19 See, in this regard, article 5, item LV, of the Brazilian Constitution, and article 115 of the Brazilian Antitrust Law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions