Although it is necessary to notify foreigners in international cartel cases, this is not always possible, given the various difficulties. Therefore, CADE has been operating with requests for assistance from the Federal Police and requests for international cooperation through the Ministries of Justice, Public Security and Foreign Relations. In some cases, notification through public notices is also being used; a measure that has been criticized.

The notification attempts, however, are not standardized, so the General Superintendence uses different means in each process to locate foreign individuals. Alongside the procedural uncertainty, the means used are not always effective, and the in absentia effects are even applied in some cases. In order to address the issue and the need for greater uniformity, the General Superintendent informed that he is assessing the preparation of a specific resolution on the subject, bringing changes to the efficiency of the process and guiding how notification should be carried out.

O conteúdo The Notification of individuals may have resolution in Cade aparece primeiro em Grinberg Cordovil Advogados.

According to Article 1 of the Decree, “agencies and entities of the direct federal public administration, autarchic and foundational” should review “all [their] normative acts prior to the decree.” The objective of this revision would be to simplify, update, and consolidate the legal acts. As an example, the Federal Government reported that 80,967 normative acts were identified, most of which were reviewed, resulting in the revocation of 42.5%.1

In the specific case of Inmetro, the measure substantially reduced the number of evaluation norms from the agency, who previously had 491 normative acts and now has only 145 consolidated acts. This reduction was possible through an analysis that, besides reducing bureaucracy, allowed a legislative standardization, organizing in which acts Inmetro would be the objects and in which it would act as a regulator, as well as which would be governed by other regulators, besides the merger of repetitive devices or of identical normative value.

This measure increases the efficiency of Inmetro’s actions and aligns its regulations with international practices. In this sense, the registrations also will no longer be physical. They will be made through the Orchestra System, and to maintain uniformity, all of them will follow the General Requirements for Conformity Assessment, which was developed in conjunction with other entities.

O conteúdo Inmetro reduces the number of normative acts after a revision of norms aparece primeiro em Grinberg Cordovil Advogados.

Decisions to terminate anti-dumping investigations without a merit analysis by the Brazilian authority are uncommon, yet not unprecedented, whether it be a sunset review or an original. In the last five years,[2] four other investigations have been terminated for the same reasons, besides the recently terminated investigation.

In 2020, an original investigation against Brazilian imports of phthalic anhydride (NCM 2917.35.00), originated from Israel and Russia, was also terminated without a merit analysis. However, in this case, the authority concluded on the termination without a merit analysis, due to the nullity of the administrative act that initiated the investigation. According to Circular SECEX nº 28/2020, the initiation of the investigation was based on incomplete data, which was incapable of informing the authority about the merits of the request to open the investigation. This was a result of the petitioner not presenting information regarding the sales made by the company in their initial petition, referring to the complete period under analysis.

Additionally in 2020, the investigation into the application of bilateral safeguards against the importation of non-wovens for application in personal hygiene products (NCM 5603.11.30, 5603.12.30, 5603.91.20, and 5603.92.20), originated from Israel, was also terminated with no merit analysis, considering the inconsistency of the data presented by the petitioner.[3]

In 2021, two more investigations were terminated without a merit analysis: the original investigation against Brazilian imports of rolled stainless steel 304 (NCMs 7219.32.00, 7219.33.00, 7219.34.00, 7219.35.00, and 7220.20.90) from South Africa and Indonesia[4] and the original anti-dumping investigation against the importation of socks (classified under title 6115 in all of its 24 sub-items, and 6111 in all of its four sub-items), originated from China, Paraguay, and Hong Kong.  In both cases, the investigations were terminated due to the lack of accuracy of the data presented by the domestic industry.[5]

Therefore, the absence of a merit analysis is noteworthy, especially more recently, and it has been justified by the insufficiency or inaccuracy of the information presented.  Furthermore, despite the absence of merit analysis being more common in original or initial investigations, it also occurs in reviews, as in the process recently terminated.

[1] Circular SECEX nº 11/2022.

[2] As a research methodology, all SECEX Circulars published between 01/01/2017 and 02/24/2022 were analyzed.

[3] Circular SECEX nº 63/2020.

[4] Circular SECEX nº 75/2021.

[5] Circular SECEX nº 54/2021.

O conteúdo Investigations terminated without a merit analysis at SDCOM aparece primeiro em Grinberg Cordovil Advogados.

The decision to condemn the Defendant for participation in a cartel of public bids conducted by Banco do Brasil was issued on December 10, 2014 and determined the prohibition of the company’s participation in bids carried out by federal, state, municipal, and the Federal District public administrations, whether direct or indirect, for 5 years. In accordance with this, the Defendant and its corporate structure would be registered in the Unified Registration System of Suppliers (SICAF) of the Ministry of Economy, as impeded from bid participation during the period of 2015 to 2020.

Nevertheless, three complaints were filed before CADE in 2017, 2019, and 2020, stating that Banco do Brasil had directly contracted the Defendant in 2015 and 2020, before the end of the registration period. Additionally, the case brings forth the possibility of cross-participation of the Defendant in biddings through a subsidiary.

Therefore, the problem is in the fact of whether the prohibition to participate in bids includes or does not include direct contracts with a mixed-economy company – thereby, an entity indirectly linked to the Public Administration – since the decision in question only mentions the impediment in bids and not specifically direct contracts.

In an oral argument, the Federal Public Ministry argued the importance of the statement from CADE’s Court in maintaining compliance with decisions. In doing so, it based its speeches on the legislation that submits mixed-economy companies to the Public Administration and argued that the rules make the impediment to contract explicit, in addition to bidding, with the aim of protecting the Public Administration. It also highlighted TCU Ruling 1753/2021, as an example that companies prohibited from participating in bids with the Union cannot be contracted at any level of Public Administration.

In her vote, Reporting Commissioner Lenisa Prado concluded that there was a breach of CADE’s decision by the Defendant and its corporate structure, following the understanding of former Commissioner Abraham Benzaquen’s vote in the proceeding no. 08012.001826/2003-10. Moreover, a daily fine of R$ 250,000 was applied to the Defendant for the days in which goods were delivered for non-compliance with the obligation not to do so, explaining that the fine was defined at the maximum limit of the law, due to the seriousness and continuity of the infraction. However, the trial of the case is suspended, due to a request for a review made by Commissioner Paula Azevedo.

O conteúdo CADE discusses non-compliance of ancillary penalties in the last Judgment Session aparece primeiro em Grinberg Cordovil Advogados.

In summary, four port operators that are already set up and associated with the Labor Management Body for Temporary Port Work in Belém and Vila do Conde (“OGMO-BVC”) established a mandatory entry fee (called the “jewel”) during a general meeting for operators interested in functioning in the ports. Please note that by the New Ports’ Law (Law No. 12.815/2013), the port operator must be associated with the managing body and supplier of port workers in order to operate there.

The investigation was opened in 2015 after the National Agency of Waterway Transport (Antaq) reported the practices of the OGMO-BVC, revealing that the association was improperly charging port operation fees to those that intended to be licensed in those ports. In CADE’s investigation, it was found that the “jewel” fees were being charged in varying amounts and with different conditions. Some were considered to have potential anticompetitive effects (such as foreclosing the market) and with no economic justification.

Initially, in the 172^nd Ordinary Judgment Session (SOJ) held on February 24, the Reporting Commissioner, Lenisa Prado defended the dismissal of the case, since CADE’s General Superintendence had rectified the Technical Note that opened the administrative proceeding, by including newly investigated companies and additional violations to the list of charges, which would make its reinstatement null and void. Nevertheless, the majority of the Court followed Commissioner Luiz Hoffmann’s vote, which stated that the principle points of the case showed that a fee was charged to the new operators to cover old liabilities in 2014, transferring the responsibility to the new operators with no justification, and thus, hindering the entry of new players. In this context, Commissioner Paula Azevedo brought forth a vote, reinforcing the seriousness of the practice, since the boycott was made in the scope of a civil association, which is a lawful and legitimate environment for regulating market issues.

O conteúdo CADE rules on charging fees to new operators in the ports of Belém and Vila do Conde aparece primeiro em Grinberg Cordovil Advogados.