At the 195th Ordinary Trial Session (SOJ), held on 04/27/2022, CADE’s Tribunal discussed again the possibility of holding individuals who do not have decision-making powers in a company liable, as a result of a cartel in which that company participated.[1]
The practice discussed at the 195th SOJ was an alleged cartel, in which some of the defendants did not have a managerial position in their respective companies. Some of these individuals even signed a Cease-and-Desist Agreement with Cade (TCC).
The Reporting Commissioner, Lenisa Prado, understood that individuals, who did not participate in the management of the companies, did not have the power to commit them to be part of anticompetitive agreements. Without authority to make decisions regarding prices and market division, these individuals would not have the possibility to commit an antitrust violation. In her view, this condition should also be extended to individuals who concluded TCCs with CADE, and the administrative proceeding should be dismissed with regard to them, due to the lack of decision-making powers, rather than the compliance with the agreement (as usually occurs).
Commissioner Sérgio Ravagnani highlighted that there were defendants in the administrative proceeding, who acted under orders of hierarchical superiors, which should remove their liability. In his view, Law 12,529/2011 established a regime, in which there is: (i) objective liability of a legal entity (art. 37, I, of Law 12,529/2011); (ii) as well as objective liability of an individual, who constitutes him or herself as an autonomous decision-making center (art. 37, II, of Law 12,529/2011); and (iii) subjective liability of the administrator (art. 37, III, of Law 12,529/2011). Thus, non-administrator individuals would only be liable in cases, in which the person is an autonomous center of decisions, without hierarchical relations or subordination to another person. Nevertheless, regarding individuals that entered into agreements, Commissioner Sérgio Ravagnani understood that the case should be dismissed, due to the compliance with the respective agreements (regardless of the absence of decision-making powers).
In contrast, Commissioner Luiz Hoffmann understood that it is not possible to rule out the liability of non-administrator individuals, if they commit an antitrust violation. In addition to this, non-administrator individuals, such as business managers, coordinators, and sales representatives, are often responsible for implementing and operationalizing cartels. Considering the seriousness of the practice, which is also considered a crime, it would not be possible to assume that an employee of the sales team was not aware of the unlawfulness of his acts.
This last position was adopted by the majority of CADE’s Tribunal, who condemned the non-administrator individuals, even if they did not have decision powers, and dismissed the case against non-administrator individuals, who entered TCCs and leniency agreements, since they complied with their respective agreements (regardless of not having decision-making powers).
[1] Administrative Proceeding no. 08700.003396/2016-37.
