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.

Despite being formally aimed at leniency agreement proposals with CADE, the document is relevant to other forefronts with the Antitrust Authority, such as negotiations of the Term of Cessation of Conduct Commitment (TCC), and even to investigations of general bilateral conduct. Moreover, the Guide has relevant subsidies for the preparation of competition compliance programs.

The novelty of the recently published recommendations, in reference to the first Antitrust Leniency Program Guide (2017) – which already provided guidance on the type of information and documents that should be submitted by the proponents of the agreement – is that these are now listed and categorized in the new document within Cade’s wide jurisprudence. Cade establishes the standards of direct and indirect evidence typically accepted or rejected by the Court, based on decisions from cartel cases and other cases that influenced the adoption of equal business conduct between 1993 to 2020.

With this, the Guide can set bounds for the proponents’ expectations regarding their documents’ potential to effectively prove the narrated violation, according to Cade’s own historical understanding. Thereby, it would be possible to reduce the situations in which leniency agreements are made without subsidies, principally based on the expectation of evidence raised in future investigations or in TCC agreements (an expectation that can be frustrated). In addition, it would aid in reducing the discrepancy of understandings between the General Superintendence (the body that signs the agreement) and CADE’s Court (the body that can effectively condemn the reported conduct).

Thus, the Guide reinforces the necessity for a jurisprudential review to delimit some parameters in the adoption of the minimum evidential standard. Despite this, the Guide reinforces that the investigative activity is dynamic, and that it is possible to have situations that deviate from jurisprudential standards.

Cade’s review of precedents is presented in the Guide by eight principle topics, accompanied by addendums of excerpts from the referenced decisions. They are the following: (i) examples of evidence of cartel in the reasoning of CADE’s Court; (ii) direct evidence of the existence of an agreement; (iii) indirect evidence of an agreement; (iv) evidence of the effects of the conduct in Brazil; (v) an adequate evidence set; (vi) evidence considered insufficient when presented alone; (vii) validity of the evidence presented; and (viii) evidence of the level of institutionalism of the conduct.

The Guide concludes that different types of evidence have been accepted by the Court to condemn cartels. Direct evidence is highly valued, but a conviction can also be based on indirect evidence, when presented in high enough numbers. CADE’s Court values a holistic analysis of such evidence, meaning evidence that proves the conduct through interference of the circumstances, especially when presented as an abundant, diverse set of evidence. For conducts occurring abroad, the demonstration of potential or real effect in the domestic market was shown to be indispensable.

O conteúdo Cade publishes new recommendation guidelines for evidence in Antitrust Leniency Agreement Proposals aparece primeiro em Grinberg Cordovil Advogados.