April 25, 2008
The Commissioner of Competition, Competition Bureau of the Government of Canada(“Commissioner of Competition”), and the Council for Economic Defense (“CADE”), the Secretariat of Economic Law of the Ministry of Justice (“SDE”), and the Secretariat for Economic Monitoring of the Ministry of Finance (“SEAE”) of the Government of the Federative Republic of Brazil, hereinafter referred to as the “Participants”;
Having regard to the importance of cooperation and coordination among theParticipants to further effective competition law enforcement in both countries;Recognizing that cooperation in enforcement activities and the coordination of suchactivities may result in a more effective resolution of the Participants’ respectivecompetition law concerns than would be attained through independent action; andConsidering the important work being done at the International Competition Network,and the close working relationship among the Participants in this forum;Have decided as follows:
On this page
- Purpose and definitions
- Cooperation and coordination
- Avoidance of conflicts
- Existing laws and confidentiality of information
- Communications under this arrangement
- Final provisions
I. Purpose and definitions
- The purpose of this Arrangement is to promote cooperation and coordination amongthe Participants.
- In this Arrangement, these terms will have the following definitions:
- “competition law(s)” means:
- (i) The statutory and regulatory provisions that address competition law, theadministration and enforcement of which are charged to the Participants, aswell as any amendments thereto, and such other statutory or regulatoryprovisions as the Participants may from time to time accept in writing to bea “competition law(s)” for the purpose of this Arrangement.
- (ii) For purposes of subparagraph 2(a)(i), the statutory and regulatory provisionscharged to the Commissioner of Competition are listed in Annex A to thisArrangement, while the statutory and regulatory provisions charged toCADE, SDE and SEAE are listed in Annex B to this Arrangement.
- “enforcement activity(ies)" means any investigation or proceeding conducted by aParticipant in relation to the competition law it administers or enforces;1 and
- “territory” means the territory in which a Participant has jurisdiction.
- Each Participant will notify the others as soon as practicable of any amendments toits competition law.
- Subject to Paragraph VI, each Participant will notify the other Participants withrespect to its enforcement activities which may affect the other Participants’interests in the application of their competition law, including those that:
- are relevant to the enforcement activities of the other Participants;
- involve any conduct or transaction, other than mergers or acquisitions, carried outin whole or in part in the other Participants’ territory, that may be subject topenalties or other remedies under the competition law administered and enforced bythe other Participants, except where such conduct or transaction is insubstantial;
- involve mergers or acquisitions in which one or more of the parties to thetransaction carries out a business activity in the other Participants’ territory, or isunder control of a body which is incorporated or organized under the laws of theParticipants’ territory;
- involve penalties or other remedies that expressly require or prohibit conduct in theother Participants’ territory or are otherwise directed at conduct in that territory;and
- involve the seeking of information located in the other Participants’ territory,whether by personal visit by officials of a Participant or otherwise, except withrespect to telephone contacts with a person in the other Participants’ territorywhere that person is not the subject of investigation and the contact seeks only anoral response on a voluntary basis. Such visits will be subject to the consent of thenotified Participant.
- Notification will ordinarily be given as soon as it becomes evident that thenotifiable circumstances are present.
- Once a particular matter has been notified, subsequent notifications on that matterneed not be made unless the notifying Participant becomes aware of new issuesbearing on the interests of the other Participants in the application of theircompetition law, or unless the notified Participants request otherwise.1 The Participants understand that for Brazil “investigation or proceeding” includes decisions taken by CADE.
- Notifications will include the nature of the activities under investigation and thecompetition law provisions concerned and will be sufficiently detailed to enable thenotified Participants to make an initial evaluation of the effect of the activities ontheir interests in the application of their competition law.
III. Cooperation and coordination
- The Participants acknowledge that it is in their common interest to cooperate andshare information where appropriate and practicable.
- Where the Participants are pursuing enforcement activities with regard to the sameor related matters, they will endeavour to coordinate their enforcement activitieswhere appropriate and practicable.
- The Participants accept that it is in their common interest to work together intechnical assistance initiatives related to competition law enforcement and policy.Subject to the Participants’ reasonably available resources, these initiatives mayinclude such forms of technical cooperation as the Participants decide areappropriate for purposes of this Arrangement.
IV. Avoidance of conflicts
- The Participants acknowledge that it is in their common interest to minimize anypotentially adverse effects of one Participant’s enforcement activities on the otherParticipants’ interests in the application of their respective competition laws.
- Where one Participant informs the others that a specific enforcement activity by asecond Participant may affect the informing Participant’s interests in the applicationof its competition law, the second Participant will endeavour to provide timelynotice of significant developments relating to those interests and an opportunity toprovide input regarding any proposed penalty or other remedy.
- Any questions arising out of this Arrangement, including questions on theinterpretation or the application of this Arrangement, will be discussed among theParticipants and addressed in as timely and practicable a manner as circumstancespermit.
Officials of the Participants will meet periodically, as necessary, to:
- exchange information on their enforcement efforts and priorities in relation totheir competition law;
- exchange information on economic sectors of common interest;
- discuss changes which may be under consideration with respect to competitionlaw; and
- discuss other matters of mutual interest relating to the application of theircompetition law or the operation of this Arrangement.
VI. Existing laws and confidentiality of information
- Nothing in this Arrangement will require a Participant to take any action, or torefrain from acting, in a manner inconsistent with existing laws, or will require anychange in the laws of Canada or the Federative Republic of Brazil.
- Notwithstanding any other provision in this Arrangement, no Participant is requiredto communicate information to the other Participants if such communication isprohibited by the laws or regulations of the Participant possessing the informationor would be incompatible with the interests of that Participant in the application ofits competition law.
- The degree to which one Participant communicates information to the otherspursuant to this Arrangement may be subject to, and dependent upon, theacceptability of the assurances given by the other Participants with respect toconfidentiality and with respect to the purposes for which the information will beused.
- Unless otherwise decided by the Participants, each Participant will, to the fullestextent possible, maintain the confidentiality of any information communicated to itin confidence by the other Participants. Each Participant will oppose, to the fullestextent possible, any request by a third party for communication of such confidentialinformation, unless the Participant providing the confidential information consentsin writing to its communication.
VII. Communications under this arrangement
Communications under this Arrangement will be carried out directly among theParticipants. Each Participant may designate a contact point, as notified in writing to theother Participants.
VIII. Final provisions
- This Arrangement will come into effect on the date of signature of the finalsignatory.
- This Arrangement may be amended upon the mutual written consent of theParticipants.
- This Arrangement will remain in effect for an indefinite period of time unlessone Participant notifies the others in writing that it wishes to terminate theArrangement. In that case, the Arrangement will terminate for the notifyingParticipant 60 days after such written notice is given.
Signed in quadruplicate, at [ , Brazil] this [day] of May, 2008, in the English, Frenchand Portuguese languages, each text being equally valid.
Commissioner of Competition,
Competition Bureau of the Government of Canada
ELIZABETH M. M. Q. FARINA
Council for Economic Defense of theGovernment of the Federative Republic of Brazil
MARIANA TAVARES DE ARAÚJO
Secretariat of Economic Law of the Ministryof Justice of the Government of the FederativeRepublic of Brazil
NELSON HENRIQUE BARBOSA FILHO
Secretariat for Economic Monitoring of theMinistry of the Finance of the Government ofthe Federative Republic of Brazil
"Competition law(s)" charged to the Commissioner of Competition:
- Competition Act, R.S. 1985, c. C-34, except for sections 52 to 60 and Part VII.1;
- Notifiable Transactions Regulations, S.O.R. 87-348; and
- Regulations Respecting Anti-Competitive Acts of Persons Operating a DomesticService, S.O.R. 2000-324.
"Competition law(s)" charged to CADE, SDE and SEAE:
- Brazilian Competition Law (Law No. 8.884/94, amended by Law No.9.021/1995, Law No. 10.149/2000, and Law No.11.482/2007);
- Regulation CADE n. 46/07;
- Regulation CADE n. 45/07;
- Regulation CADE n. 44/07;
- Regulation MJ n. 04/06;
- Joint Regulation SEAE/SDE n. 33/06;
- Regulation SEAE n. 46/06;
- Regulation SEAE n. 24/05;
- Regulation SDE 14/04;
- Joint Regulation SEAE/SDE n. 08/04;
- Joint Regulation SEAE/SDE n. 01/03;
- Regulation MJ 961/02;
- Joint Regulation SEAE/SDE n. 1/2003;
- Joint Regulation SEAE/SDE n. 50/01; and
- Regulation MF n. 305/99.