In line with foreign antitrust authorities, the Administrative Council for Economic Defense – CADE published yesterday (July, 6th) a temporary information note with recommendation of general guidelines for structuring collaboration strategies between companies and presenting the procedures available to economic agents obtain a quick pronouncement from the agency, aiming to avoid anti-competitive risks, while mitigating the effects of the crisis in the affected markets.
The guidelines define that, in order not to violate competition law, collaborations must have: (i) the scope limited to the problem arising from the pandemic; (ii) the duration restricted to the period necessary to fight the effects of the crisis; (iii) the geographic territory attached to the place where Covid-19 strikes, since the pandemic can develop unevenly across the country; and, finally, (iv) the principles of compliance, transparency and good faith to preserve competition and neutralize competitive risks.
Regarding the procedures for prior analysis of collaborations, CADE provides the following means: (a) communication channel with CADE’s General Superintendence – SG (superintendencia@cade.gov.br), to obtain a preliminary statement on the existence or no evidence of anti-competitive conduct; (b) petition, to obtain written and non-binding pronouncements from SG and CADE’s Tribunal, which may determine the filing of the file, the opening of an investigation or the adoption of measures and requisition of information necessary for the monitoring of the activities announced among agents; and (c) consultation, which must follow the requirements of Resolution No. 12/2015, to obtain a binding pronouncement from the CADE’s Tribunal.
CADE points out that the information note is merely instructive and aims to promote transparency and legal certainty to support temporary collaborations between companies. The document does not admit the misrepresentation of guidelines for the implementation of anti-competitive agreements between competitors or facilitating the exchange of competitively sensitive information. The economic agents will continue to be responsible for the evaluation of their strategies and any indications of practices that are harmful to competitions may give rise to the opening of investigations by the authority.
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