In the last Extraordinary Judgement Session (January 20), the Administrative Council for Economic Defense – CADE once again discussed the relevance of the mechanism of process recall, which falls under the jurisdiction of the Tribunal and consists of the possibility of the Tribunal, through the provocation of one of its members, to require more detailed analysis of cases closed by the General Superintendence (GS/CADE).
At the end of the session, Commissioner Lenisa Prado filed a recall request for Administrative Inquiry No. 08012.001693/2011-91, which had been closed by GS/CADE and investigated alleged practices of sham litigation by AstraZeneca. Next, Commissioner Paula Azevedo stated that there would be “reasonable analytical doubt” about the GS/CADE’s decision, and that the Tribunal has been using the recall mechanism in a very productive manner. The other members of the Tribunal, however, voted not to recall the case, as they considered the GS/CADE’s analysis sufficient to dispel any concerns. Commissioner Sérgio Ravagnani also affirmed that recall is an institute that should be used with parsimony.
At the same session, Commissioners debated the possibility of recalling the Administrative Inquiry No. 08700.002532/2018-33 filed against certain fuel distributors in Rio de Janeiro. In the end, although Commissioners Luis Braido and Paula Azevedo considered that the instruction carried out was not able to clarify the case, the others understood that the work of GS/CADE was sufficient to overcome the competitive concerns.
The mechanism of process recall had recently been discussed by the CADE’s Tribunal at the end of 2020, due to a request presented by Commissioner Lenisa Prado and related to the operation between Fiat and Peugeot (Merger Case No. 08700.002193/2020-18). On that occasion, the Commissioner’s vote was not followed by the other Commissioners, including the President of CADE, who stated that the Tribunal should keep in mind the main purpose of the recall mechanism, which is, according to him, to allow the Commissioners to invest more time and focus on “more relevant competitive cases”.
