CADE rules on charging fees to new operators in the ports of Belém and Vila do Conde

At Cade’s 179th Ordinary Judgment Session (SOJ) last week, the Court voted by majority to convict several companies and one association of the anticompetitive practice of market foreclosure, for charging fees to new port operators in the ports of Belém and Vila do Conde (the State of Pará).

In summary, four port operators that are already set up and associated with the Labor Management Body for Temporary Port Work in Belém and Vila do Conde (“OGMO-BVC”) established a mandatory entry fee (called the “jewel”) during a general meeting for operators interested in functioning in the ports. Please note that by the New Ports’ Law (Law No. 12.815/2013), the port operator must be associated with the managing body and supplier of port workers in order to operate there.

The investigation was opened in 2015 after the National Agency of Waterway Transport (Antaq) reported the practices of the OGMO-BVC, revealing that the association was improperly charging port operation fees to those that intended to be licensed in those ports. In CADE’s investigation, it was found that the “jewel” fees were being charged in varying amounts and with different conditions. Some were considered to have potential anticompetitive effects (such as foreclosing the market) and with no economic justification.

Initially, in the 172nd Ordinary Judgment Session (SOJ) held on February 24, the Reporting Commissioner, Lenisa Prado defended the dismissal of the case, since CADE’s General Superintendence had rectified the Technical Note that opened the administrative proceeding, by including newly investigated companies and additional violations to the list of charges, which would make its reinstatement null and void. Nevertheless, the majority of the Court followed Commissioner Luiz Hoffmann’s vote, which stated that the principle points of the case showed that a fee was charged to the new operators to cover old liabilities in 2014, transferring the responsibility to the new operators with no justification, and thus, hindering the entry of new players. In this context, Commissioner Paula Azevedo brought forth a vote, reinforcing the seriousness of the practice, since the boycott was made in the scope of a civil association, which is a lawful and legitimate environment for regulating market issues.