New provisions have been included in the Brazilian Federal Law No. 12,529/2011, related to antitrust infractions, such as cartels and unilateral conducts that may harm competition.
The amendments were made through the Federal Law No. 14,470/2022 and refer to the time-bar and private enforcement of antitrust infractions.
Despite the fact that the previous wording already grants the right of private enforcement to the parties harmed by those involved in antitrust infractions, the new law implemented additional rights and conditions, such as the right to be indemnified in double for the losses incurred as a result of these infractions (restricted to cartels), which, on the other hand, does not apply to the parties that have entered into a leniency agreement with the Brazilian antitrust authority, whose liability will be in accordance to the damages caused directly by them.
In addition, it has been provided that the parties involved in cartels that have been later claimed in a private enforcement action shall prove that the overprice has been passed to them, which shall not be assumed by the court.
As for the time-bar for filing a private enforcement action, it shall not be effective during the course of an antitrust procedures before the Brazilian Antitrust Authority. Furthermore, the five-years period shall be counted from the publishing date of the final decision of the Brazilian Antitrust Authority (considered as the moment in which the party became aware of the infraction).
Finally, it has also been provided that preliminary injunctions may be granted within a private enforcement action based on a decision of the Brazilian Antitrust Authority, as to expedite the indemnification.
The Federal Law No. 14,470/2022 has been published on 17 November 2022 and is already effective.
Our team is available for additional clarifications, as well as to assist in matters related to the private enforcement of antitrust infractions.
Gustavo Flausino Coelho – gustavo@bastilhocoelho.com.br
Thales Castanheira – thales@bastilhocoelho.com.br