CADE initiates public consultation addressing the Guide on Cooperation Between Competitors

On March 18, 2026, the Brazilian Administrative Council for Economic Defense (“CADE”) launched a public consultation for the preparation of the Guide on Cooperation Between Competitors, which consolidates the authority’s understanding of cooperative arrangements between competing companies, in compliance with Law No. 12,529/2011 (“Brazilian Competition Law”).

It is worth noting that the guide is not binding on CADE’s internal bodies and does not exhaust the assessment of specific cases. In light of this, companies should continue to seek specialized legal advice for each particular arrangement.

Contributions can be submitted until May 04, 2026, through the Brasil Participativo platform.

The draft guide acknowledges that cooperation between competitors may be legitimate and pro‑competitive, as it can generate efficiency, foster innovation, and reduce costs. At the same time, the guide clarifies that certain arrangements may be unlawful by virtue of their object – such as price fixing, market allocation, bid rigging, and no‑poach agreements –, or may produce anticompetitive effects depending on their design, duration, governance, and the extent of information exchange.

The document adopts a broad concept of cooperation, encompassing formal agreements (including partnerships, joint ventures, consortia, trade associations, and associative agreements) as well as informal or ad hoc interactions, including exchanges of information between competitors as well as arrangements intermediated by third parties. It also considers a functional concept of “competitors”, which may include potential entrants and take into account other companies within the same economic group whose activities affect competition-based rivalry.

In addition, the draft guide emphasizes that certain associative agreements may be subject to mandatory pre‑merger review. In such cases, the arrangements cannot be implemented prior to CADE’s approval, under penalty of nullity, fines ranging from BRL 60,000 to BRL 60 million, and the potential initiation of administrative proceedings (Article 88, §3 of the Brazilian Competition Law). Thus, any exchange of competitively sensitive information must be strictly limited to what is necessary for the negotiation and formal execution of the agreement.

What is meant by “collaboration between competitors”?

Current regulations already stipulate that associative agreements must be notified to CADE when they cumulatively:

(i) Have a term of two years or more (including renewals or extensions beyond the 24th month);

(ii) Establish a common project for the pursuit of economic activity, including the sharing of risks and results; and

(iii) Are entered into between competitors in the market covered by the agreement.

Furthermore, we highlight some of the forms of cooperation between competitors that are expressly addressed in the guide:

• Trade associations, unions, and sectoral entities: These activities are permitted for institutional representation, dissemination of best practices, and non‑competitive coordination. The competition threshold is crossed when sensitive information – such as prices, volumes, commercial policies, or market strategies – is discussed or exchanged, requiring strict procedural governance.
• Purchasing groups: Cooperation is acceptable if aimed at achieving efficiency in the acquisition of inputs or services. Concerns arise if arrangements involve significant market volumes, essential inputs, exclusivity clauses, or the exchange of sensitive data capable of generating monopsony power or exclusionary effects.
• Joint production, sales, distribution, or logistics: These arrangements are compatible with competition when limited to ancillary functions and focused on cost reduction. Risk arises from the unification of commercial decisions or suppression of rivalry in key competitive variables, such as price, quality, coverage, or deadlines.
• Sharing of assets, infrastructure, or technology: Permitted when it aims at diluting fixed costs or enabling efficient access to resources that are not central to competition-based rivalry. Risks arise when the arrangement forecloses access to essential assets, standardizes commercial decisions, or unjustifiably excludes third parties.
• Sectoral studies, market intelligence, and benchmarking: Information‑sharing is legitimate when it is structured around aggregated, anonymized, and time‑lagged data, focused on operational metrics and best practices. The boundary is crossed with the disclosure of individualized strategic information, whether current or forward‑looking.
• Data sharing: Acceptable when economic utility is preserved without undermining competition, through appropriate mitigation of data sensitivity. Risk increases in concentrated markets, involving individualized data that is not publicly available or is difficult for rivals and entrants to replicate.
• Sharing of network infrastructure: May be compatible with competition if it enhances efficiency and coverage while preserving the parties’ competitive autonomy. Risks arise from excessive interdependence, the exchange of business information, or clauses that restrict entry or differentiation.
• Innovation, Research and Development (R&D): Cooperation is particularly acceptable at uncertain stages of technological development, with risk-dilution potential. It becomes sensitive when it eliminates competing projects, reduces incentives for differentiation, or imposes broad restrictions on future exploitation.
• Standard‑setting and interoperability: Standard-setting is compatible with competition when conducted through open, transparent, and non‑discriminatory processes. Risks arise when standardization homogenizes competitive variables or excludes viable alternative solutions.
• Sustainability and environmental initiatives: Joint initiatives are admissible when they are proportionate, directed at verifiable environmental benefits, and do not replace competition-based rivalry. Risk arises when these initiatives mask anticompetitive coordination regarding price, quality, or innovation.
• Crises and emergency situations: Emergency cooperation may be justified to ensure continuity of supply, provided that it is strictly limited in terms of scope, duration, and geographic reach. Any extension beyond competitive normalization requires reassessment.

How to mitigate competition concerns?

The Guide on Cooperation Between Competitors places particular emphasis on the exchange of competitively sensitive information, identifying risk‑mitigation best practices such as data aggregation and anonymization, time‑lagging, the use of independent third parties, clean teams, and antitrust protocols.

The draft guide establishes a clear set of regulatory expectations for structuring cooperation between competitors, emphasizing information‑risk prevention, governance coordination, and adherence to formal antitrust compliance instruments.

In this context, we highlight the following practical recommendations:

• Antitrust protocols and information governance: Formalizing rules regarding access, permitted uses, confidentiality, sanctions, and audit trails, applicable to both collaborative projects and associative settings.
• Corporate, physical, and functional segregation: Limiting access by directors or appointees to sensitive data, using segregated repositories with access controls and logs, establishing clean teams, and adopting quarantine measures whenever appropriate.
• Independent third parties: Engaging consultants, advisors, or lawyers as data trustees to collect and process data, delivering only aggregated and anonymized outputs.
• Aggregation, anonymization, and time‑lagging: Removing the strategic value of shared information through adequate sample sizes, sector‑appropriate granularity, and time lagging consistent with pricing and negotiation cycles.
• Robust compliance programs: Continuous training, standardized interaction protocols (including stop‑the‑clock mechanisms), and record‑keeping.
• Consultation with CADE: In case of doubt regarding the classification of an associative agreement or the legality of a practice, use of the consultation procedure before CADE’s Tribunal is recommended (Article 9, paragraph 4 of the Brazilian Competition Law and CADE’s Resolution No. 11/2015).
• Leniency Program: For conduct involving unlawful activities – such as cartels, no‑poach agreements, and spontaneous exchanges of sensitive information –, leniency is recommended as a tool for immunity or reduction of penalties.

Therefore, the public consultation represents a significant opportunity for companies and trade associations to contribute to the refinement of the proposed guidelines, particularly in light of the growing relevance of collaborative projects across multiple sectors of the economy.

For further details, please refer to CADE’s public consultation.

Demarest’s Competition team remains available to provide further clarification and to assist with impact assessments and the submission of contributions to the public consultation.