Penalties imposed between 2023 and 2025 total about R$45m.
A bill that began moving through Congress in 2025 seeks to prevent individuals involved in cartels—such as partners or employees—from being held personally liable or fined, limiting penalties to companies only. The proposal is controversial and faces opposition from the Administrative Council for Economic Defense (CADE).
According to experts, antitrust law has long debated the effectiveness of holding individuals liable. One argument is that personal accountability can slow proceedings. On the other hand, without the possibility of individual sanctions, incentives for cooperation would diminish, and detecting anti-competitive conduct would become more difficult.
The discussion resurfaced within the antitrust community after a vote by council member Carlos Jacques in early 2025 in a case investigating a cement industry cartel, which involved accusations against three individuals.
In his vote, Jacques argued that individuals who make corporate decisions should also be punished, but said the issue requires deeper reflection on “the costs involved in prosecuting individuals involved in cartels and the potential gains, including, in particular, the deterrent power of the competition authority.”
This view does not reflect CADE’s institutional position. Internally, there is resistance to the idea of leaving individuals to be sanctioned exclusively in other legal spheres. Some officials argue that without individual convictions, incentives to engage in cartel practices would increase.
According to CADE President Gustavo Augusto, the agency is not opposed to debating the matter but does not consider it a priority. He notes that cartels are classified as crimes under Brazilian law and that, since only individuals can be held criminally liable, the proposed change would effectively decriminalize cartel conduct. This, in turn, would prevent the use of criminal investigative tools such as wiretapping.
“We have no objection to discussing the issue, but we do not believe it is a priority at the moment,” he says. “In any event, cartel cases would need to be treated differently, because we understand that individual criminal liability is important, particularly in cases of bid rigging.”
Jacques’s vote is grounded in the doctoral thesis of lawyer Ana Paula Martinez, a partner in the competition practice at Levy & Salomão and a former secretary of Economic Law, the predecessor of CADE’s General Superintendence. According to Martinez, the proposed reform would correct the current model, which she argues has proven inefficient and, paradoxically, has become less effective as a deterrent over time.
“Today, individuals are subject to both criminal and administrative proceedings for the same facts, which leads to delays, disputes over bis in idem [double jeopardy], and legal uncertainty,”
she says. According to the lawyer, CADE investigations are not uncommon and can last more than a decade.
At the administrative level, current legislation allows for fines of up to R$2 billion for individuals. For administrators and managers, penalties may reach up to 20% of the fine imposed on the company. Between 2023 and 2025, fines levied on individuals in cartel cases ranged from R$100,000 to R$400,000, totaling approximately R$45 million, according to a survey by attorney Alessandro Giacaglia of Pinheiro Neto Advogados.
Over the past two years, more than 100 individuals have been sanctioned by CADE for cartel conduct. These individual penalties accounted for about 5% of the total fines imposed by the authority, according to the firm’s data.
Giacaglia notes that CADE often brings cases involving numerous individuals, many of whom played little or no role in corporate decision-making. To deal with this, the authority may issue a public notice or open a separate proceeding, effectively creating one case for companies and another for individuals. “The process only moves forward once everyone has been summoned, and attempts to serve individuals can take years,” he says.
This approach was adopted, for example, in the cement cartel case, which occurred between 1990 and 2007. In 2025, a group of individuals was finally tried, prompting the concerns raised by council member Jacques.
Giacaglia, however, believes that reducing CADE’s jurisdiction over individuals could weaken incentives for cooperation.
“A significant part of CADE’s effectiveness comes from the predictability of the system,”
he argues.
For Juliana Domingues, a former CADE prosecutor and president of the Brazilian Institute of Competition and Innovation (IBCI), the issue has two sides.
“In administrative proceedings, speed is expected, and the point raised in Jacques’s vote was precisely a criticism of the time elapsed, since the trial of individuals took place 15 years after the cartel,”
she says.
On the one hand, Domingues adds, excluding individuals could speed up administrative proceedings. There is also the risk of conflicts between administrative and criminal cases.
“From time to time, individuals argue that they were convicted by CADE but acquitted in criminal court,”
she notes. On the other hand, when individuals are included, they tend to be more willing to seek settlements.
“No one wants a conviction attached to their Social Security Number,”
she says.
Bill 4,612/25, introduced in September by São Paulo Representative Jonas Donizete, is currently awaiting the appointment of a rapporteur in the Economic Development Committee.
Source: Valor International
