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Guidelines

For inspections by the Brazilian Competition Authority (CADE)

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What documents must the officials present?

Brazilian Competition Authority (CADE)
 

  • The authorized individuals to enter the business premises are the (i) probation officer; (ii) CADE’s officials; and (iii) the police officers.    
  • The officials must present a search warrant issued by a court. By presenting a valid search warrant, the officials may enter the business premises independently of the consent of the company’s employees.  
  • If the officials present a valid search warrant, read the documents and check very carefully: 
  • Do the officials possess a valid search warrant issued by a court? 
    • Is our company the addressee?  
    • Are the officials one of the authorized individuals to enter the business premises? 
    • What accusations are being raised against our company (subject matter of the inspection)? 
    • Where may the officials search? 
  • If there is no search warrant, object to any inspection.  

Where and how may the officials search?

Brazilian Competition Authority (CADE)
 

  • In principle, you are only obliged to passively tolerate the inspection. You are therefore not obliged to actively assist the inspection. However, if you refuse the inspection, the officials may use direct force (e.g. to open a cupboard) with the support of the police officers. Therefore, cooperation is recommended. 
  • The officials may demand information that could enable access to evidence (e.g., passwords, location of documents) if they explicitly mention the duty to cooperate. In this case, you are obliged to cooperate.  
  • The officials cannot remain unaccompanied on the company premises neither evaluate and seize documents without the presence of a witness. The witnesses must be preferably the employees of the company. In the absence of them, the probation officer can designate other witnesses.   
  • You should not (i) leave the business premises carrying on documents and/or electronic devices that have not been analyzed and/or released by the officials; and (ii) make communications or actions that interfere with the collection or destruction of evidence. 
  • The inspection can extend to all business premises, located at the address indicated in the search warrant, cupboards, desks, safes, cars, IT systems. You may not deny the officials access to any such premises and/or objects located at the referred address. 

What may the officials search?

Brazilian Competition Authority (CADE)

Most important

  • Never voluntarily surrender any objects or documents. Always insist on a formal seizure. However, do not resist formal seizure. 

Documents

  • Seize of the originals of all documents is the applicable rule, even if they contain business secrets. Therefore, ensure to make a copy of every seized document.  
  • The following documents may not be seized, copied or inspected by the officials: 
    • Correspondence in the company with an external lawyer if this refers to investigation proceedings already underway; 
    • Documents which the company or the accused employee clearly prepared for the defense in the proceedings already underway; and 
    • Private documents which are not related to the investigation and are of no significance as evidence. 

Computers and other objects

  • In general, the officials are also entitled to seize computers and other objects. Moreover, they may make electronic copies of computer files. However, request that computers and servers are left at the company. Grant access to computer files. Important: always make an electronic copy of all computer files which the officials take away. 
  • If appropriate, inform the officials that documents which are privileged or which are not related to the accusations are saved on the computer and may not be copied. In this case request that the officials do not seize the computer or data storage media. Further request that the officials only make random checks of folders and files which are not related to the accusations raised.If the officials request access to computers, telephones or other technical means protected, for example, by a password or in another way which you do not know how to unlock, inform the officials. The officials have the right to use technical or software tools to overcome such security systems only if the court decision indicates so. If the court decision does not contain a reference to the possibility of using such means, bring this to the officials’ attention but in no case try to stop them. 

Random finds

  • The officials are only entitled to search for, inspect and examine documents which are relevant to the investigation and fall within the scope of their powers as set out in the search warrant. Monitor the documents being examined. If you are concerned that the officials are examining documents which are not relevant to the current investigation or which may include evidence about another infringement beyond the scope of the investigation, inform the external lawyer immediately. 

Protocol / Seals

  • The seizure notice is the official document that records all the items collected and formalizes their seizure, as well as the occurrences in the course of the diligence.  The preparation of the report is an activity under the responsibility of the probation officer.  
  • After conclusion of the inspection you should insist that the officials make a precise list of all evidence seized. If no relevant material is found during the inspection ask for written confirmation thereof. At the end of the activity, the probation officer must appoint a CADE officer as the trustee of the seized materials. 
  • The officials are entitled to affix seals to premises, rooms, cupboards and documents, etc., e.g. if an inspection lasts several days. Do not break this seal.  
  • If determined in the court summons, the company's representative will be informed about the procedures and indicative dates for the return of the seized material, to be carried out at CADE's premises. 

Who may be questioned by the officials and how?

Brazilian Competition Authority (CADE)
 

The officials are entitled to request from all employees and representatives of the company explanations of facts and documents that may be related to the purpose of the inspection and to record the answers in writing. The employee must cooperate in this respect and failure to do so can result in personal liabilities under national law, including crime. 

Only answer questions that are related to the inspection and the documents or electronic equipments that are being seized. Only answer the questions that are asked. Stick to the facts and do not comment from a legal point of view. Give short and precise answers. Tell the officials if you do not know the answer to a question. Do not make any assumptions. 

Presence of lawyers / procedure of the interview

  • Request that you only be questioned in the presence of the external lawyer.  
  • Request that questions to be asked only in a formal interview which ensures that questions and answers are recorded. Request a copy of all records made by the officials. Never sign any document before having consulted a lawyer. Sign the records only if they are correct and complete. 

Guidelines for the interview

  • The officials may request any information requisite for conducting the investigation. 
  • Answer only questions which are actually related to the purpose of the inspection. Answer only the questions asked. Give short and precise answers. Tell the officials if you do not know the answer to a question. Do not make any assumptions. 

External communication.

Brazilian Competition Authority (CADE)
 

  • Do not disclose any details or even the fact that an inspection is taking place to third parties without obtaining permission from the management / legal department.  
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