In the trial session held on November 11th, 2015, the Administrative Council for Economic Defense (CADE) ruled that the measures adopted regarding a company’s Settlement Agreement (“TCC”) does not interrupt the statute of limitation, which continues to run with regards to the other defendants.
In fact, section 46 and its §1st of Law 12,529/2011 set forth that: “the punitive actions of the direct and indirect federal public administration, aimed at probing infringements to the economic order, become time-barred within five (5) years, counted as of the date of the practice of the unlawful conduct or, in case of permanent or recurrent infringement, from the halting date of the act”; “Any administrative or judicial act to probe the violation against the economic order, as mentioned in this same section, interrupts the statute of limitation, as well as the notification or summons of the defendant”.
When judging the Administrative Proceeding No. 08012.012.081/2007-4, and after it was established that a settlement agreement was entered into by one of the defendants during the proceedings, CADE, following the Reporting Commissioner João Paulo de Resende, found that the processing of the TCC (including its assignment to a Reporting Commissioner, its judgement and the shelving of the proceeding in regards to the contracting party) does not constitute an “administrative or judicial act to probe the violation against the economic order”.
The Reporting Commissioner’s ruling effectively settled that “the TCC did not impose any obligation to the defendants to cooperate with the inquiry of the violations committed by the other defendants”, and that the infringements allegedly performed by the defendants are separate. One must keep in mind that the proceeding sought to investigate conducts regarding demands from commercial centers related to the so-called “clause of radius” (whereby a retailer is obliged to not having a commercial establishment within a contractually fixed radius). This means that the conducts were carried out individually, and not collectively.
However, there is one problematic topic remaining: Cade allowed the statute of limitations to expire in an administrative proceeding in which one of the parties had already entered into an agreement, as well as had paid a pecuniary contribution. It was not said that some products could have an increase of their prices, but some shopkeepers thought they had been harmed. It is necessary to analyze to what extent the company that signed the settlement agreement felt harmed, since it might have done so in order to prevent the consequences of an administrative proceeding taking place; nonetheless, only this company will suffer the consequences, as all others were benefitted by the statute of limitation.