O conteúdo ANPD selects experts to discuss Simplified Registration of Personal Data Processing Operations aparece primeiro em Grinberg Cordovil Advogados.

Port operators or private use terminals charge the first THC tariff, in the case of imports, to move the containers received on vessels into their yards. The tariff that is conventionally called “THC2” (also called Segregation and Delivery Service – SSE) is the tariff charged for the service of moving the same container from the yard where it originally was to a location outside the terminal; for example to the independent customs warehouses outside the terminal, where customs clearance will take place. The fee in question has been under discussion at CADE for years.

The new DEE document addresses issues related to the need for isonomy in terms of charging or not charging the THC2 fee when terminals are vertically integrated with shipowners (maritime container carriers), since storage services are already not charged in these cases. According to the DEE, it is necessary to compare the amount of the final service in the downstream market with the services of non-verticalized agents, so that, if so understood, a minimum analysis of the legality of this fee can be performed by means of the equally efficient competitor test.

The conclusion of the DEE study does not bind the understanding of CADE’s Tribunal, which has been against wet terminals (with access to ships) charging the THC2 fee to move import containers to dry terminals (without access to ships), under the argument that port operators would have an interest in excluding rivals and be given unlimited bargaining power, if they were allowed to charge the THC2.

On June 23, a week before the study was published, the Federal Audit Court (TCU) considered charging the THC2 illegal, in the opposite direction of DEE, and gave the National Waterway Transport Agency (ANTAQ) 30 days to review the normative that allows this fee. The TCU’s decision, which was favorable to the dry terminals, left ANTAQ isolated between the state agencies that defend the permission to charge this fee.

The DEE’s technical note can be found at this link and the complete study at this link.

O conteúdo CADE’s Economic Studies Department and the TCU diverge on the legality of charging the THC2 fee aparece primeiro em Grinberg Cordovil Advogados.

O conteúdo CADE's Economic Studies Department and the TCU diverge on the legality of charging the THC2 fee aparece primeiro em Grinberg Cordovil Advogados.

Chapter V of the LGPD deals specifically with this topic in its article 33 and presents the legal hypotheses that authorize the international transfer of personal data. In the hypothesis of transfer based in the offer and proof of data protection by the controller (art. 33, II), change in these guarantees must also be advised to the Authority, under the terms of art. 36. Meanwhile, articles 34 to 35 provide that the ANPD will evaluate the level of data protection of the foreign country or international entity through the consideration of certain criteria, which will define the content of standard contractual clauses on this subject. It will also verify contractual clauses, global corporate standards or seals, certificates, and codes of conduct that are specific to a given transfer.

The regulation of this activity by the ANPD is foreseen in the Authority’s Regulatory Agenda for the 2021-2022 biennium.

In this context, the ANPD intends to receive contributions from different economic agents, holders of personal data and other interested parties, in order to regulate this subject to ensure effective protection of the holders and their personal data, without neglecting the need of competitive insertion of Brazilian companies in global value chains. With the information gathered, ANPD will prepare a Regulatory Impact Assessment on the theme.

More information about the issues subject to debate and on the registration for those interested in collaborating are available at this link.

O conteúdo ANPD will select experts to discuss regulations concerning International Transfers of Personal Data aparece primeiro em Grinberg Cordovil Advogados.

Alexandre Barreto, who was CADE’s president between 2017 and 2021, focused his speech on the highlight of his mandate, namely: (i) the authority’s recognition in Brazil and abroad; (ii) CADE as the only OECD member agency, as a competition committee member; (iii) CADE’s collaborations with other public entities in Brazil, such as the Central Bank, the Federal Courts of Accounts and other regulatory agencies; (iv) the 29-day average term to review mergers during his term; and (v) CADE’s 180 agreements, which amounted to R$2.4 billion in pecuniary contributions.

Victor Fernandes highlighted his career in public administration as a tendered public servant at the National Telecommunications Agency (Anatel) and legal advisor to the Presidency of the Republic, in matters related to infrastructure policies, his prior experience at CADE as chief of staff of Paulo Burnier (former Commissioner), and his current role as chief of staff of Minister Gilmar Mendes (Federal Supreme Court).

The nominees were questioned by the Senators on the following topics: (i) an agreement signed between CADE and Petrobras for the divestment of eight refineries in 2019; (ii) marketplaces that import products without taxes and their effects on the domestic market and (iii) possible solutions from CADE for bank spread reduction.

Regarding the agreements signed between CADE and Petrobras, Senators Esperidião Amin (Progressistas Party), Kátia Abreu (Progressistas Party) and Jean Paul Prates (Workers Party) criticized the authority’s actions in approving the agreement that led to the sale of the 8 oil refinery units from Petrobras. The Senators associated the sale with a decrease in competition in the global oil market and the current increase in national gasoline prices. On this point, Alexandre Cordeiro presented details of how these agreement works, indicating that the initiative to sign an agreement comes from the companies investigated (i.e., company) and not from CADE.

Senator Ângelo Coronel (PSD) questioned CADE’s performance in relation to marketplaces that do not pay taxes on imports of products and that, therefore, would be competing in a predatory way with Brazilian retailers. In response, Victor Fernandes explained that the digital market is a topic of great relevance in current antitrust debates around the world, as is the case with the various reform questioning emerging in the United States. In his view, the Brazilian competition legislation provides all the necessary tools to allow the authority to monitor digital markets. Regarding predatory pricing, there are theories of harm concerning this practice that could be applied by CADE, if marketplaces are found abusing pricing or using data to exclude competitors from the market. In any case, these points would need to be analyzed carefully, due to the great propensity for innovation in the digital market.

Senator Kátia Abreu (Progressistas Party), finally, questioned CADE’s actions to reduce banking spread. Alexandre Barreto and Victor Fernandes highlighted that Cade does not control prices and that it can only initiate an investigation if there are indications of abuse of a dominant

position or collusion. Victor Fernandes highlighted CADE’s performance in investigations involving financial institutions, especially in relation to the verticalization of the sector and two points that can be addressed in the financial market: (i) more rigorous merger control and the application of remedies, ensuring that entry is possible and that FinTechs can increase competition in the sector; and (ii) advocacy work with other agencies to promote best practices in the financial sector.

At the end of the session, Juliana Domingues was reviewed. The candidate highlighted her practical and academic experience in the areas of antitrust and consumer protection, as well as her experience at the National Consumer Secretariat (Senacon) during the pandemic (in 2020) and her current role as Special Advisor to the Minister of Justice and Public Security Anderson Torres.

Senator Nelsinho Trad (PSD) questioned the growing concentration in the private health market and CADE’s role in this control. Juliana Domingues answered that it is necessary to strengthen the agreements between CADE and regulatory agencies, such as ANS (National Agency of Supplementary Health) so that these negative externalities resulting from operations in the sector are closely monitored by the authorities.

The nominations of Alexandre Barreto e Victor Fernandes will still be submitted for approval by the Senate plenary. It is noteworthy that the approval by the plenary of Gustavo Lima for CADE’s Councilor, whose nomination occurred in December last year, is still pending. The nomination of Juliana Rodrigues was approved by the Senate on Wednesday (April 6).

O conteúdo Nominees for positions at CADE are approved by the Senate’s Economic Affairs Committee aparece primeiro em Grinberg Cordovil Advogados.