New legislation concerning Brazilian antitrust legislation
According to the current Brazilian antitrust law (Law n. 12.529/2011), “associative contracts” (contrato associativo) must be previously notified to and approved by CADE (Conselho Administrativo de Defesa Econômica) – the Brazilian antitrust authority – before being implemented by the parties. However, said law does not explain the meaning of the term “associative contracts.”
In January 2015, Resolution N. 10, which defines the concept “associative contract”, came into force. Article 2 of said resolution, which was issued by CADE, fills the gap regarding the definition of “associative contracts” explaining that these are contracts, whose term exceed two years, in which there is horizontal or vertical cooperation or risk sharing and which results in a relation of dependency between the parties.
In conclusion, currently it is clear that (if certain requirements are met) some agreements involving intellectual property, such as a technology license agreement between a patent holder and a competitor, must be submitted to CADE’s scrutiny.