The CADE, the Brazilian competition authority, has issued its draft of guidelines on compliance programs. Here are some quick comments on this draft guidance, in terms of positive things I see in what they have done:
1) CADE begins with an important policy point, that “society, the economy and competition as a whole benefit from compliance programs.”
2) The Tribunal may consider a compliance program as evidence of good faith and a mitigating factor when calculating a fine.
3) CADE states that autonomy and independence of those responsible for the program are key for the program’s effectiveness
4) Citing SCCE’s white paper, “A Compliance & Ethics Program on a Dollar a Day”, CADE observes that cost is not a bar for small companies to have programs.
5) CADE draws on the ICC Toolkit on compliance programs.
6) According to the guidance, reporting systems should be anonymous and confidential (apparently rejecting the approach taken in Portugal of barring anonymous helpline calls)
7) The competition law compliance program should be integrated with other compliance efforts.
It is apparent from reading the draft Guidance that CADE examined the role of compliance programs very carefully, and is interested not just in imposing fines, but in actually preventing violations.
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