Cade Court discusses the statute of limitations applicable to cartel cases

During CADE’s latest Trial Session, on July 4th, the Tribunal had an important and unprecedent discussion. When judging the packaging and taxi operators cartel cases, the Reporting Commissioners, Maurício Bandeira Maia and Paula Farani, presented a new thesis about the statute of limitations period applied to cartel cases.

This thesis refers to the interpretation of Article 46, paragraph 4, of Law No. 12,529 (Brazilian Antitrust Law); and Article 1st, paragraph 2, of Law No. 9.873 (Administrative Statute of Limitations Law). Both have the same wording and establish that, when the investigated practice constitutes a crime, the statute of limitation period will be defined by the criminal law (12 years for cartels), and not the administrative one (5 years). According to the Reporting Commissioners, although CADE has been applying the 12 year-period to every case of collusion, this is incorrect. Since CADE cannot deem a certain conduct to be a crime, at least a minimal investigative effort must be noted on the criminal sphere before the criminal statute of limitations could be applied to administrative proceedings.

Commissioner Bandeira Maia also added that, even with this criminal “minimal investigative effort”, the criminal statute of limitations period should be applied only to those defendants criminally investigated. In these cases, if the defendant is found not guilty, the time-limit should return to the administrative 5 year-period. Lastly, the Commissioner argued that, given the impossibility of companies committing crimes, the criminal statute of limitations period could only be applied to individuals, and not to companies.

However, the other Commissioners dismissed these theses. Among the main contrary arguments are the text of the law itself; the independence between the criminal and administrative spheres; and CADE’s settled case law in applying the criminal time-limit to cartel cases. Commissioner Bandeira Maia understands that CADE’s current position may change in the future, depending on contrary judicial decisions.