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THE FUTURE GENERAL PROTECTION OF THE BRAZILIAN DATA LAW

06/27/2018

CHINA’S STATUS AS A MARKET ECONOMY IN TRADE DEFENSE INVESTIGATIONS

05/25/2018

BRAZIL AND THE OECD: IS INTEGRATION POSSIBLE?

04/20/2018

REVIEW OF CADE’S DECISION DUE TO LACK OF INDIVIDUALIZATION OF THE CONDUCT

01/24/2018

GREATER AND ADDITIONAL SANCTIONS FOR CARTELS: CONTROVERSIAL BILL

08/05/2016

CARTEL, LENIENCY AGREEMENTS AND LIABILITY FOR PRIVATE DAMAGES

04/28/2016

THE ABUSIVE NATURE OF DISCOUNTS TO CASH OR CHECK (BANK DRAFT) PAYMENTS

03/30/2016

EXPERT EXAMINATIONS IN CADE MAY BECOME SIMPLER AND MORE ACCESSIBLE

02/14/2016

PRACTICING LAW BEFORE CADE

02/01/2016

MERGERS AND EMPLOYMENT ISSUES

01/11/2016

CADE: ENTERING INTO AN AGREEMENT WITH A DEFENDANT DOES NOT INTERRUPT…

11/23/2015

THE GRAPHITE ELECTRODES CASE – A SETTLEMENT IN LIMBO

11/16/2015

LIBOR AND SUPREME COURT

11/06/2015

JUDICIAL REVIEW OF CADE’S DECISIONS.

09/29/2015

COMPETENCE CONFLICT BETWEEN CADE/BACEN AND THE SUPPLEMENTARY BILL OF LAW

09/21/2015

NOTIFICATION OF WHAT IS NOT NOTIFIABLE

07/27/2015
São Paulo 19.07.2018
PUBLICATIONS
JUDICIAL REVIEW OF CADE’S DECISIONS.
Al. Santos, 787, 8th floor
São Paulo/SP - Brazil - 01419-001

Daniel Tobias Athias

The Administrative Council of Economic Defense – CADE, organ responsible for overseeing competition in the market, with powers to monitor and judge antitrust matters, exercises, within the Federal Public Administration, the function of a judicative Tribunal, having quasi-judicial nature. Albeit the complex (and thorough) decision-making process of the authority, that deals not only with legal issues, but also with their (in)direct economic implications, public and private interests, surpassing the dichotomy of legal vs. illegal, the organ does not exercise jurisdictional functions, since this is attributed solely to the Judiciary. CADE’s decisions, as well as its procedures, are of an administrative nature. As so, due to the fact that Brazil does not employ a framework of independent administrative litigation, although there is a decision by a Tribunal, these decisions are subject to jurisdictional control (i.e. judicial review). This arises from Brazil’s system of sole jurisdiction and the Court’s non-obviation of judicial review, as foreseen in art. 5º, item XXXV of the Constitution . Having established the possibility of “judicializing” administrative decisions, it follows that controversy, in both jurisprudence and precedents, falls within the extent of the review, if broad or restrained, if restricted to formal issues or encompassing material aspects, with strong arguments for and against judicial review and its limits. The analysis of formal aspects by the Judiciary, restricted to the control of legality and compliance with legal norms, guarantee of due process and other constitutional procedural rights, as well as formal aspects of the administrative act (competence, form, etc.), does not present major controversy. With one being able to claim that there is an established understanding of the possibility of review/control of these points. The review of material aspects, with a broad control not only of the decision-making process but the content of the decision itself, on the other hand, presents some resistance. It is alleged that this type of action would be an invasion of competence, as per the understanding of some scholars and tribunals. The more emphatic (and most disquieting) stances pertain to emptying/stripping CADE of its functions at the expense of a broader role of the Judiciary and the complexity/technicity of the matters being discussed. First off, it is worth noting that the Superior Tribunal of Justice has already handed down a precedent stating that “(…) although it institutionally functions as a judicative Tribunal, Cade has not lost its attachment to the Executive Power. Therefore, within the idea of checks and balances, the decisions handed down by Cade are not exempt from broad review by the Judiciary” . The issue of technicity, although it could be justified by the complexity of the discussions, is ungrounded and cannot serve as an argument to exclude competence . The fact remains that the Judiciary, as the power responsible for the final interpretation of antitrust legislation, has a central role in the system of defense of competition. Notwithstanding, there is a need of some level of self-restraint so as to avoid an overly active and invasive stance by the Judiciary, resulting in an emptying-out of the organ’s functions. The interaction between the Judiciary and CADE needs to be dialectic, with the possibility, for example, of the former laying down legal references for the organs comprising the SBDC (Brazilian System of Antitrust Defense). Concrete examples of performance in this sense can be seen in relation to the legality of evidence utilized and standard of proof necessary to condemn an agent for an anticompetitive conduct. Legal decisions aiming to deter failures to observe fundamental procedural guarantees will serve not only to enhance the system of antitrust defense, but will also guarantee soundness of the legal system. It does not seem reasonable to grant to CADE exclusive competence/power, be it under any allegation (technicity, separation of powers, etc.) to examine antitrust matters, since this would be contrary to the internal organization of the Brazilian state and its legal system. One concludes that, as was decided by the STJ, Cade’s decisions, “be it regarding the horizontal (object of the demand) or vertical (cognitive depth of the analysis) aspects” , are, a priori, subject to broad review by the Judiciary.
[1] It is worth noting that judicial review of CADE’s decisions presents various nuances and subtleties that will not be addressed in this article, which aims to present a general overview of the relationship between the antitrust authority and the Judiciary.
[2] Art. 5º All are equal under the law, without distinctions of any nature, guaranteeing to Brazilians and foreigners residing in the country the sanctity of their right to life, liberty, equality, safety and property, under the following terms: XXXV – no law shall restrict the possibility of judicial review of any harm or threat of harm to any right;
[3] For example, in favor: impossibility of restricting the Judiciary’s jurisdiction, the strength that the legal decisions may bring to influence CADE’s decisions, presenting legal references; and against: the emptying out of functions and decisions by the antitrust authority, the discretionary power of the organ to interpret open concepts and the technicity of the matter being analyzed.
[4] STJ, EDcl no Resp n. 1.181.643 – RS (2010/0028927-4), tried in august 9th 2011.
[5] It is worth noting that there are opinions that a Judge, albeit not tied to what was produced by CADE and its internal organs, due to the principle of free conviction, may (and must) utilize the votes and studies carried out as if they were manifestation of experts.
[6] Notwithstanding, and as per the characteristics presented by the authority in its Annual Report of 2009-2010, administrative decisions are upheld in 84% of the cases.
[7] On this point, the considerations presented by Daniel Coutinho da Silveira, regarding the characterization of cartels, are valid: “It occurs that this need to demonstrate an existing agreement leads to abuses in the conduction and arbitrariness of trials in these types of cases. There would be many cases were perfectly legal meetings could be interpreted as evidence of collusion for the formation of a cartel. These exaggerations can be verified by the lack of control in the risk of interpreting the norm, which needs to exist so that distortions are not created in its application” in. Prova Argumento e Decisão: Critérios de suficiência para orientação dos juízos de fato no direito processual brasileiro. Master’s Dissertation – USP.
[8] STJ, EDcl no Resp n. 1.181.643 – RS (2010/0028927-4), tried in august 9th 2011.