In the 214th Ordinary Trial Session (“SOJ”), the Brazilian antitrust authority, the Administrative Council for Economic Defense (CADE), closed an administrative procedure due to lack of evidence, which investigated alleged influence to adopt uniform commercial conduct through an invitation to collude. Evidence of the infraction was limited to suspicious messages exchanged between the investigated parties about the prices practiced at their gas stations (fuel resale market).
During the investigative phase before the General Superintendence (SG/Cade), the authority carried out an analysis of the prices practiced by the investigated parties. The results of this analysis indicated that prices did not reflect an agreement between competitors, since there were no variations during the period of the exchanged messages. Despite the lack of evidence of a cartel (i.e., an actual and executed agreement), the SG/Cade[1] understood that the mere initiative of one party contacting a competitor to question prices practiced, in an attempt to standardize prices, represented an invitation to collude.
After Reporting Commissioner Sérgio Ravagnani issued his vote in the prior SOJ (213th), which recommended closing the investigation, Commissioner Luiz Hoffman requested additional time to review the case. On that occasion, Commissioner Hoffman stated that the case stood out given the investigative and procedural context of one of the defendants, who is involved in 5 other proceedings at CADE. Additionally, the lack of Brazilian precedents on invitation to collude was also mentioned as a factor that contributed to the request.
In his opinion, Commissioner Hoffmann explores legal doctrine on the matter [invitation to collude], in order to present a substantial definition of the concept. In this regard, Hoffman cites the position of Alexandre Cordeiro, CADE’s current President, who understands that an invitation to collude occurs when a party influences others to adopt competitively identical strategies.
Based on these references, Commissioner Hoffman understood that the messages exchanged regarding the prices very much resembled an invitation to collude. However, the messages in and of themselves would not be sufficient to conclude that there was, indeed, an invitation to uniform prices .
Finally, it is worth highlighting the Tribunal’s position on the aforementioned context, being stated that despite there being an apparent pattern of conduct adopted by one of the defendants (due to their involvement in other investigations), these other elements could not be considered in the present case.
[1]: This position was followed by the Public Prosecutors in their opinion.
