Brazil’s Antitrust Authority Dismisses Two Cartel Investigations Due to Insufficient Evidence

The Tribunal at Brazil’s Antitrust Authority (CADE) has dismissed two administrative proceedings investigating cartel activities since the beginning of 2024. These cases involved the water meter market and a group of construction companies participating in a bidding process. Both were dismissed due to insufficient evidence against some of the defendants.

The rulings highlight the importance of carefully analyzing indirect and unilateral evidence in cartel investigations, even in cases originating from Leniency Agreements or Settlement Agreements (TCC). Key points from the rulings include:

1. Leniency Agreements and TCCs: These do not automatically lead to convictions of other investigated parties. Corroboration and sufficient evidence are required to eliminate reasonable doubt about the defendants’ alleged involvement.
2. Unilateral Evidence: The Tribunal confirmed that an evidentiary set consisting solely of unilateral evidence, involving only one participant in the alleged collusion, is insufficient for establishing a conviction.
3. Indirect Evidence: Evidence indicating signs of collusion but not conclusively proving it is viewed as weak, especially when such evidence is sparse or ambiguous.
4. Secretive Documents: Unilaterally produced documents or tables of unknown authorship are not enough to prove misconduct between multiple parties.
5. Alternative Narratives: Proving a legitimate business relationship between defendants can provide an alternative narrative to collusion, depending on the specifics and evidence of the case.

These judgments underscore the stringent standard of proof CADE applies to cartel investigations, reflecting the new lineup at CADE’s Tribunal.

Source: Mattos Fiho