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13068 Brazil - Agreement Regarding Cooperation Between their Competition Authorities in the Enforcement of their Competition Laws


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13068

 

 

TRADE

Competition Laws

 

 


Agreement Between the
UNITED STATES OF AMERICA
and BRAZIL

 


Signed at Washington October 26, 1999

 

 

 

 


 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”

 

BRAZIL

Trade: Competition Laws

Agreement signed at Washington October 26, 1999;
Entered into force March 25, 2003.

AGREEMENT BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL,
REGARDING COOPERATION BETWEEN THEIR COMPETITION AUTHORITIES IN
THE ENFORCEMENT OF THEIR COMPETITION LAWS
The Government of the United States of America and the Government of the
Federative Republic of Brazil (hereinafter referred to as "Parties"),
Desiring to enhance the effective enforcement of their competition laws through
cooperation between their competition authorities;
Having regard to their close economic relations and noting that the sound and effective
enforcement of their competition laws is a matter of crucial importance to the efficient
operation of markets and to the economic welfare of the citizens of their respective countries;
Recognizing that cooperation and coordination in competition law enforcement
activities may result in a more effective resolution of the Parties' respective concerns than
would be attained through independent action;
Further recognizing that technical cooperation between the Parties' competition
authorities will contribute to improving and strengthening their relationship; and
Noting the Parties' commitment to give careful consideration to each other's important
interests in the application of their competition laws,
Have agreed as follows:
2
ARTICLE I
PURPOSE AND DEFINITIONS
1. The purpose of this Agreement is to promote cooperation, including both enforcement
and technical cooperation, between the competition authorities of the Parties, and to ensure
that the Parties give careful consideration to each other's important interests in the application
of their competition laws.
2. For the purposes of this Agreement, the following terms shall have the following
definitions:
(a) "Anticompetitive practice(s)" means any conduct or transaction that may be
subject to penalties or other relief under the competition laws of a Party;
(b) "Competition authority(ies)" means
(i) for Brazil, the Administrative Council for Economic Defense (CADE)
and the Secretariat for Economic Law Enforcement (SDE) in the
Ministry of Justice; the Secretariat for Economic Monitoring (SEAE) in
the Ministry of Finance;
(ii) for the United States of America, the United States Department of
Justice and the Federal Trade Commission;
(c) "Competition law(s)" means
(i) for Brazil, Federal Laws 8884/94 and 9021/95;
for the United States of America, the Sherman Act (15 U.S.C. §§ 1-7),
the Clayton Act (15 U.S.C.§§ 12-27), the Wilson Tariff Act (15 U.S.C.
§§ 8-11), and the Federal Trade Commission Act (15 U.S.C. §§ 41-58),
to the extent that it applies to unfair methods of competition,
as well as any amendments thereto;
(d) "Enforcement activity(ies)" means any investigation or proceeding conducted
by a Party in relation to its competition laws;
3. Each Party shall promptly notify the other of any amendments to its competition laws
and of such other new laws or regulations that the Party considers to be part of its competition
legislation.
ARTICLE II
NOTIFICATION
1. Each Party shall, subject to Article IX, notify the other party in the manner provided by
this Article and Article XI with respect to enforcement activities specified in this Article.
Notifications shall identify the nature of the practices under investigation and the legal
provisions concerned, and shall ordinarily be given as promptly as possible after a Party's
competition authorities become aware that notifiable circumstances are present.
2. Enforcement activities to be notified pursuant to this Article are those that: (a) are
relevant to enforcement activities of the other Party; (b) involve anticompetitive practices,
3
the other Party; (c) involve mergers or acquisitions in which one or more of the parties to the
transaction, or a company controlling one or more of the parties to a transaction, is a company
incorporated or organized under the laws of the other Party or of one of its states; (d) involve
conduct believed to have been required, encouraged, or approved by the other Party; (e)
involve remedies that expressly require or prohibit conduct in the territory of the other Party or
are otherwise directed at conduct in the territory of the other Party; or (f) involve the seeking
of information located in the territory of the other Party.
3. The Parties acknowledge that officials of either Party may visit the territory of the other
Party in the course of conducting investigations pursuant to their respective competition laws.
Such visits shall be subject to notification pursuant to this Article and the consent of the
notified Party.
ARTICLE III
ENFORCEMENT COOPERATION
1. The Parties agree that it is in their common interest to cooperate in the detection of
anticompetitive practices and the enforcement of their competition laws, and to share
information that will facilitate the effective application of those laws and promote better
understanding of each other's competition enforcement policies and activities, to the extent
compatible with their respective laws and important interests, and within their reasonably
available resources.
2. Nothing in this Agreement shall prevent the Parties from seeking or providing
assistance to one another pursuant to other agreements, treaties, arrangements or practices
between them.
ARTICLE IV
COOPERATION REGARDING ANTICOMPETITIVE PRACTICES IN THE
TERRITORY OF ONE PARTY THAT MAY ADVERSELY AFFECT THE INTERESTS
OF THE OTHER PARTY
1. The Parties agree that it is in their common interest to secure the efficient operation of
their markets by enforcing their respective competition laws in order to protect their markets
from anticompetitive practices. The Parties further agree that it is in their common interest to
seek relief against anticompetitive practices that may occur in the territory of one Party that, in
addition to violating that Party's competition laws, adversely affect the interest of the other
Party in securing the efficient operation of the other Party's markets.
2. If a Party believes that anticompetitive practices carried out in the territory of the other
Party adversely affect its important interests, the first Party may, after prior consultation with
the other Party, request that the other Party's competition authorities initiate appropriate
enforcement activities. The request shall be as specific as possible about the nature of the
anticompetitive practices and their effects on the important interests of the requesting Party,
and shall include an offer of such further information and other cooperation as the requesting
Party's competition authorities are able to provide.
3. The requested Party's competition authorities shall carefully consider whether to initiate
or to expand enforcement activities with respect to the anticompetitive practices identified in
the request, and shall promptly inform the requesting Party of its decision. If enforcement
activities are initiated or expanded, the requested Party's competition authorities shall advise
the requesting Party of their outcome and, to the extent possible, of significant interim
developments.
4
4. Nothing in this Article limits the discretion of the requested Party's competition
authorities under its competition laws and enforcement policies as to whether to undertake
enforcement activities with respect to the anticompetitive practices identified in a request, nor
precludes the requesting Party's competition authorities from undertaking enforcement
activities with respect to such anticompetitive practices.
ARTICLE V
COORDINATION WITH REGARD TO RELATED MATTERS
1. Where both Parties' competition authorities are pursuing enforcement activities with
regard to related matters, they will consider coordination of their enforcement activities.
2. In any coordination arrangement, each Party's competition authorities will seek to
conduct their enforcement activities consistently with the enforcement objectives of the other
Party's competition authorities.
ARTICLE VI
AVOIDANCE OF CONFLICTS; CONSULTATIONS
I. Each Party shall, within the framework of its own laws and to the extent compatible
with its important interests, give careful consideration to the other Party's important interests
throughout all phases of its enforcement activities, including decisions regarding the initiation
of an investigation or proceeding, the scope of an investigation or proceeding, and the nature
of the remedies or penalties sought in each case.
2. Either Party may request consultations regarding any matter relating to this Agreement.
The request for consultations shall indicate the reasons for the request and whether any
procedural time limits or other constraints require that consultations be expedited. Each Party
shall consult promptly when so requested with a view to reaching a conclusion that is
consistent with the purpose of this Agreement.
ARTICLE VII
TECHNICAL COOPERATION ACTIVITIES
The Parties agree that it is in their common interest for their competition authorities to
work together in technical cooperation activities related to competition law enforcement and
policy. These activities will include, within their competition agencies' reasonably available
resources: exchanges of information pursuant to Article III of this Agreement; exchanges of
competition agency personnel for training purposes at each other's competition agencies;
participation of competition agency personnel as lecturers or consultants at training courses on
competition law and policy organized or sponsored by each other's competition authorities;
and such other forms of technical cooperation as the Parties' competition authorities agree are
appropriate for purposes of this Agreement.
ARTICLE VIII
MEETINGS OF COMPETITION AUTHORITIES
Officials of the Parties' competition authorities shall meet periodically to exchange
information on their current enforcement efforts and priorities in relation to their competition
laws.
5
ARTICLE IX
CONFIDENTIALITY .
1. Notwithstanding any other provision of this Agreement, neither Party is required to
communicate information to the other Party if such communication is prohibited by the laws of
the Party possessing the information or would be incompatible with that Party's important
interests.
2. Unless otherwise agreed by the Parties, each Party shall, to the fullest extent possible,
maintain the confidentiality of any information communicated to it in confidence by the other
Party under this Agreement. Each Party shall oppose, to the fullest extent possible consistent
with that Party's laws, any application by a third party for disclosure of such confidential
information.
ARTICLE X
EXISTING LAWS
Nothing in this Agreement shall require a Party to take any action, or to refrain from
acting, in a manner that is inconsistent with its existing laws, or require any change in the laws
of the Parties or of their respective states.
ARTICLE XI
COMMUNICATIONS UNDER THIS AGREEMENT
Communications under this Agreement may be carried out by direct communication
between the competition authorities of the Parties. Notifications under Article II and requests
under Articles IV.2 and VI.2 shall, however, be confirmed promptly in writing through
customary diplomatic channels and shall refer to the initial communication between the
competition authorities and repeat the information supplied therein.
ARTICLE XII
ENTRY INTO FORCE AND TERMINATION
1. This Agreement shall enter into force on the date on which the Parties exchange
diplomatic notes informing each other that they have completed all applicable requirements for
its entry into force.
2. This Agreement may be amended by the mutual agreement of the Parties. An
amendment shall enter into force in the manner set forth in paragraph 1 for entry into force of
this Agreement.
3. This Agreement shall remain in force for an indefinite period of time, unless one Party
notifies the other Party in writing that it wishes to terminate the Agreement. In that case, the
Agreement shall terminate 60 days after such written notice is given.
6
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective
Governments, have signed this Agreement.
DONE at Washington, DC, this 26th day of October, 1999, in the English and
Portuguese languages, each text being equally authentic.
FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA:
FOR THE GOVERNMENT OF THE
FEDERATIVE REPUBLIC OF
BRAZIL:



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