Both cases involved the acquisition of properties for the storage of bulk solids, which is the acquiring company’s core activity, making these transactions subject to CADE’s approval. In both cases, the transactions were reported to CADE after payment had been fully made in one instance and 88% completed in the other; furthermore, the acquiring party had already taken possession of the acquired properties.

The importance of this case lies in CADE’s conclusion that the full payment in one case and near-complete payment in the other, along with the possession of the acquired properties, constituted the consummation of the transactions without prior approval from CADE. This led to the imposition of sanctions on the parties for the practice of gun jumping.

O conteúdo Cade adjudicates cases involving Gun Jumping accusations aparece primeiro em Grinberg Cordovil Advogados.

In this specific market, since 2018 (following an extensive truck drivers’ strike), the National Land Transport Agency (ANTT) has issued, via ordinances, tables with minimum freight prices. The issuance of these tables is authorized by Law 13,703/2018, which is currently the subject of Direct Actions of Unconstitutionality (ADIs 5,969 and 5,965). However, until the ADIs are ruled on by the Supreme Federal Court (STF), the law remains fully in force.

The judgment clarified that if the Union’s tables—presented as mandatory—had adhered to ANTT’s tables, there would be no competition issue. However, since the Union’s tables exhibited higher prices, Sintracon/SC was condemned for anti-competitive practices.

O conteúdo Cade condemns Sintracon/SC for illegal price-fixing aparece primeiro em Grinberg Cordovil Advogados.

This request represents an important first step following the execution of a Concentration Control Agreement (ACC), on October 16, between the Administrative Council for Economic Defense (CADE) and the Oben Group as a condition for approving Oben’s acquisition of Terphane.

Based on a study conducted by CADE’s Department of Economic Studies (DEE-CADE) and responses to requests for information from companies operating in the sector, Reporting Commissioner Victor Fernandes concluded that the maintenance of anti-dumping measures on imports of PET film would constitute a significant barrier to imports into Brazil.

According to the Commissioner, those measures would hinder the entry of new competitors, increase the cost to importers of BOPET sourced from the producing regions and reduce the competitiveness of imports in the domestic market.

In light of these considerations, the parties negotiated the ACC that foresee the following undertakings regarding anti-dumping measures[2]:

1. To request the immediate termination of anti-dumping duties on imports of BOPET from Peru, Bahrain, the United Arab Emirates and Mexico;
2. To not request the reinstatement of suspended anti-dumping duties on imports of BOPET from China, or the renewal of anti-dumping duties on imports from China, India, and Egypt;
3. To not request the initiation of new investigations for the imposition of anti-dumping duties on imports of BOPET from India, Egypt, Peru, Bahrain, the United Arab Emirates, China and Mexico, for a period of five years.

The ACC also stipulated that the merged company may not require exclusivity from distributors operating in Brazil, or make use mechanisms that could lead to tariff or non-tariff alterations that would increase the cost of imports of BOPET. Existing countervailing measures were not addressed or limited by the ACC.

As highlighted in the decision, this outcome reflects an important institutional dialogue between CADE and the Trade Defense Department of the Secretariat for Foreign Trade (DECOM/SECEX/MDIC) which aims at promoting effective competition in the Brazilian BOPET film market and address the competition concerns identified.

[1]  https://www.in.gov.br/web/dou/-/circular-n-64-de-18-de-novembro-de-2024-596563079

[2]https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?HJ7F4wnIPj2Y8B7Bj80h1lskjh7ohC8yMfhLoDBLddZsvmjZILDQspDmgL9xEemz0O_q0-emljCBhE2YV9cwoZvaRGYPRD-sjXLwiCairnp1PQ7lSbsrIvxE1xVhRikr

O conteúdo PET Film producer requests termination of anti-dumping duty sunset review following agreement approved by CADE aparece primeiro em Grinberg Cordovil Advogados.

However, CADE’s understanding for mergers carried out under the current law is that there is no statute of limitations. As clarified by Councilor Gustavo Augusto in his statement, any acts subject to CADE’s approval that were not notified are considered non-existent. The major difference lies in the fact that, under the previous law, the acts had to be reported before or within fifteen days of their completion, while under the current law, CADE’s approval is a condition for the merger’s consummation.

O conteúdo Prescription applies only to mergers prior to May 2012 aparece primeiro em Grinberg Cordovil Advogados.

Among the legal changes, notable updates include the publication of regulations for the Anti-Corruption Law and the approval of the new Bidding and Administrative Contracts Law, which now requires the implementation of integrity programs in high-volume contracts by the winning bidder. In terms of market practices, the concept now encompasses topics related to environmental, social, and governance best practices, in addition to the fight against corruption.

O conteúdo The Office of the Comptroller General (CGU) published an update to the “Integrity Program: Guidelines for Private Companies” aparece primeiro em Grinberg Cordovil Advogados.

The main difference is that the Cease-and-Desist Agreement does not require an admission of guilt, but only the acknowledgment of objective responsibility for the act in question. This means that there is not necessarily a conviction at the end of the investigation. Additionally, the new ordinance includes provisions on criteria for reducing fines and mitigating sanctions that restrict the ability to bid and contract with the public administration.

The new instrument also indicates a greater emphasis by the CGU on encouraging the adoption or improvement of integrity programs and on the reparation of damages caused.

Normative Ordinance CGU 155/24 was published on August 29, 2024, and came into effect on the date of its publication. It revokes Normative Ordinance CGU 19/2022.

O conteúdo Normative Ordinance CGU 155/24 aparece primeiro em Grinberg Cordovil Advogados.

Reporting Commissioner Gustavo Augusto voted to dismiss the split proceeding (Administrative Proceeding No. 08700.001805/2017-41) on the grounds that the case had remained paralyzed for more than three years (interim statute of limitations). The Reporting Commissioner’s vote was in line with the Public Attorney’s Office (PROCADE) opinion on the case. The Federal Public Prosecutor’s Office at CADE (“MPF”) and CADE’s General-Superintendence (“GS/CADE”) did not recognize the occurrence of the interim statute of limitations and opined that the defendant should be convicted.

Commissioner Carlos Jacques issued a vote noting that there is no consensus on (i) what the possible interruptive milestones of the interim statute of limitations are, (ii) how “fact finding” should occur and (iii) whether procedural acts or even the dismissal of the original cases constitute an interruptive milestone of the interim statute of limitations. Considering the case law of the Brazilian courts and previous CADE decisions, Commissioner Carlos Jacques concluded that instructional acts issued in the original proceeding should also be considered interruptive milestones in the split proceeding, since the investigated party was already being processed in the original one, which was split only due to the defendant’s health condition.

Most of the commissioners agreed with Commissioner Carlos Jacques and voted to convict the defendant. CADE’s President, Alexandre Cordeiro, voted against the conviction, aligning with the vote of Reporting Commissioner Gustavo Augusto. According to CADE’s Presidente, the wording of Article 1, §1 of Law No. 9,873/1999 is clear in stating that “The statute of limitations runs in administrative proceedings that have been paralyzed for more than three years (…)”, which precludes the interpretation that an instructional act in the original proceeding can interrupt the statute of limitations in the split proceeding. In other words, the analysis should be done individually (checking each proceeding specifically), and the split proceeding on the Sea Salt Cartel had indeed remained paralyzed for more than three years.

At the end of his vote, CADE’s President emphasized the need for CADE’s Tribunal to deepen and clarify the understanding of the Brazilian antitrust authority regarding the statute of limitations. In this regard, the new Public Attorney General at CADE, André Luís Macagnan, mentioned that PROCADE had already started a study on the subject.

O conteúdo CADE convicts a Sea Salt Cartel individual and rekindles the discussion on the interim statute of limitations aparece primeiro em Grinberg Cordovil Advogados.

CADE’s initial concern stemmed from advertising campaigns by companies offering access to databases of employee compensation and benefits across different employers. According to CADE, sharing sensitive information about employment terms could lead to salary uniformity.

To assess potential violations, CADE contacted the National Data Protection Authority (ANPD) and the benchmarking service providers. The investigation revealed diverse data sources used by these companies, including third-party data, public and private data, and that they have different business models. CADE also concluded that there were no competition concerns: the information provided by the companies contacted did not allow a market agent to extract specific and sensitive information about their competitors – as the data was presented in an aggregated and anonymized manner.

In this sense, salary data was presented in non-specific formats, such as:

1. Quartiles: based on a reference value, a percentage is indicated as being above or below the reference value. E.g., the 1st quartile indicates a value where 75% of the reported salaries are higher than this level and 25% are lower;
2. Averages: the value of the sum all reported salaries for a position divided by the number of reports; or
3. Ranges: presenting the lowest and highest reported value.

Regarding companies, the data could be aggregated considering:

1. Size or Revenue: E.g., managers in small companies or up to a certain revenue receive salaries within a specific range;
2. Region: E.g., managers in São Paulo receive salaries within a certain range.

These aggregation methods prevented identifying individual salaries and/or specific companies.

Therefore, CADE’s recent decision solidifies key guidelines for sharing compensation information, such as: i) not individualizing salary values – aggregating this information in ranges, averages, or quartiles; and/or ii) anonymizing the companies to which the remuneration refers – aggregating them by size or region. These precautions ensure the legality of data sharing.

O conteúdo CADE: Limits Between Benchmarking and the Exchange of Sensitive Information aparece primeiro em Grinberg Cordovil Advogados.

FTC Chair Lina Khan emphasized the importance of this new regulation, stating that “non-compete clauses suppress wages, stifle innovation, and deprive the American economy of its essential dynamism.” According to FTC estimates, abolishing these clauses could result in the annual creation of over 8,500 new companies, as well as a significant increase in workers’ wages.

The american Chamber of Commerce challenged the ban on non-compete clauses, arguing that it is unnecessary, illegal, and represents a blatant power grab. Additionally, several business associations stated that the proposed rule hinders rather than protects competition, and that agreements are crucial for small businesses, which may face the risk of losing executives, employees, or important partners to larger companies, as well as the risk of sharing sensitive information.

The deadline for the rule to take effect is 120 days after its publication (which has not yet occurred), providing companies with a period to adapt to the new requirements.

The rule can be accessed via the following link.

O conteúdo FTC establishes new rule banning non-compete clauses in the United States aparece primeiro em Grinberg Cordovil Advogados.

In the first panel, DECEX explained how works the coordination between the Federal Revenue and the Foreign Trade Intelligence Group – GI-CEX, and the non-automatic licensing regime. GI-CEX produces reports and receives charts. However, the measures from each sphere are independent, respecting their autonomy and competence. The licensing regime can be an effective measure in combating fraud since licensing occurs before customs clearance, and the importer must wait for the importation goods release.

Another front is the action against false declaration of origin, which is conducted based on an investigation opened after a complaint from the domestic industry, importers, or ex-officio (in this case, the Government verifies data that only it has access to). In these cases, Secex may also communicate with authorities from other countries.

The Federal Revenue, in turn, highlighted customs risk management and enforcement and control actions within the scope of clearance. The main customs frauds are fraudulent intermediation and imports under-invoicing. Today, there is a difficulty in identifying frauds, as they are more complex and overlapping. However, it was noted that the RFB has automated systems that verify data and detect potential irregularities, which help in the investigation of illegal activities.

Despite technological advances and systems integration, the authorities highlighted the important role of companies from each sector in identifying fraud and other illicit activities. Given their expertise and close monitoring, businesses and sectoral entities are able to detect possible frauds more quickly and accurately. For this reason, they reinforced the promotion of complaint channels and dialogue with the authorities, if necessary.

O conteúdo Comex: Secex and Federal Revenue of Brazil announce joint efforts aparece primeiro em Grinberg Cordovil Advogados.