In its latest trial session, held on December 11, 2019, CADE discussed the retroactive application of its Resolution No. 21/2018, which defines the rules for publicity of documents and information pertaining to administrative proceedings, particularly the disclosure of documents derived from Cease-and-Desist Agreements (“TCCs”), Leniency Agreements, and Search and Seizure Proceedings.
The Reporting Commissioner Paula Azevedo had initially voted in favor of applying the resolution to a case in a previous trial session, in which a TCC had been signed prior to the resolution coming into force. However, following a subsequent vote by Commissioner Luiz Hoffmann, Commissioner Azevedo rectified her decision with CADE’s Tribunal, unanimously voting for the non-retroactive application of Resolution 21 to agreements signed prior to its publication. The Commissioner based his decision on two main points: (i) the need to ensure legal certainty for agreements concluded before a new regulation entered into force and (ii) the existence of confidentiality clauses in the TCC, which would prevent CADE from disclosing the documents. Accordingly, the new resolution (and its obligation to disclose documents contained there in) will only apply to agreements signed after its publication, under this new judgement.