However, CADE’s understanding for mergers carried out under the current law is that there is no statute of limitations. As clarified by Councilor Gustavo Augusto in his statement, any acts subject to CADE’s approval that were not notified are considered non-existent. The major difference lies in the fact that, under the previous law, the acts had to be reported before or within fifteen days of their completion, while under the current law, CADE’s approval is a condition for the merger’s consummation.

O conteúdo Prescription applies only to mergers prior to May 2012 aparece primeiro em Grinberg Cordovil Advogados.

Among the legal changes, notable updates include the publication of regulations for the Anti-Corruption Law and the approval of the new Bidding and Administrative Contracts Law, which now requires the implementation of integrity programs in high-volume contracts by the winning bidder. In terms of market practices, the concept now encompasses topics related to environmental, social, and governance best practices, in addition to the fight against corruption.

O conteúdo The Office of the Comptroller General (CGU) published an update to the “Integrity Program: Guidelines for Private Companies” aparece primeiro em Grinberg Cordovil Advogados.

All these issues were discussed in the latest Ordinary Session of the CADE on September 11, 2024. On that occasion, CADE judged another case of price tables imposed and published by the Regional Council of Real Estate Brokers of Goiás – Creci/GO.^[2] In evaluating the case, Commissioner Diogo Thomson decided to present a typology of price table cases – thus creating, in his words, a hermeneutic algorithm to judge them.

The starting point of his analysis revisits the distinction between the evidentiary standards of American case-law – per se and rule of reason – and the types of illegality in European law – by object or by effects. These pairs are often used interchangeably, but, as Counselor Diogo Thomson pointed out, their methodologies are not identical. Although the per se rule may resemble illicit by object, European case-law recognizes cases where it is possible to remove the presumption of illegality attached to the conduct. The main distinction, therefore, lies in the space for defense and demonstration that the presumption of illegality can be relativized.

In Commissioner Diogo Thomson’s interpretation, Brazilian law would adopt the European division between illicit by object and illicit by effects. Thus, some behaviors would have a relative presumption of illegality, while others’ unlawfulness would depend on the demonstration of anticompetitive effects. Nevertheless, especially in cartel investigations, the case-law has evolved to construct a maximum presumption of illegality, leaving no room for a more in-depth examination of the economic and legal context of the conduct. In practice, there is a jurisprudential understanding that cartels must be judged according to the per se rule.

Choosing the most appropriate methodology for judging price tables is a decision between these different levels of presumption of illegality. The test proposed by Commissioner Diogo Thomson would serve as a guide to identifying the presumption to be chosen.

After analyzing CADE’s jurisprudence, Commissioner Diogo Thomson initially identified a series of convictions in cases involving price tables adopted for final consumers. In these cases, the adoption of price tables was identified “as illicit by object,” with “adherence to an absolute presumption of illegality similar to the American per se rule, given its use for establishing and controlling prices.”

However, in other cases, the use of tables was considered legal. Most of them involved the supplementary healthcare market; the bargaining power asymmetry between doctors and health plans could justify tables as a compensatory power measure. Regulation is another factor that can remove the illegality of price tables – cases, for example, of maximum price tables for medications. Nonetheless, extending these immunities may constitute an economic order violation.

Considering these precedents, Commissioner Diogo Thomson suggested that price tables be evaluated as illicit by object, with two levels of presumption of illegality:

• Absolute presumption of illegality for tables adopted for final consumers, which bear clear similarities to hardcore cartels; and
• Relative presumption of illegality for other cases, allowing defenses that go beyond the absence of authorship and materiality, such as (i) the obligation to adopt the table; (ii) minimum or maximum prices; (iii) the level of influence on the behavior of members; (iv) use as a form of compensation; and (v) a link to immunity arising from public regulation.

In this context, Commissioner Diogo Thomson then proposed a hermeneutic algorithm for judging price tables, containing the following steps:

1. Determination as illicit by object: the tables have a presumption of illegality.
2. Analysis of possible immunities and distortions of its use: is there specific legislation mandating the tables? Does the use respect the purposes established by the norm? If both answers are affirmative, the analysis ends here. Otherwise, the following steps are observed.
3. Characterization of the target of the table and adoption of absolute presumption: if the target is the final consumer, there is an absolute presumption of illegality – the defendants can only defend themselves by denying their authorship or the materiality of the practice.
4. Characterization of the target of the table and adoption of relative presumption: in other scenarios, the presumption is relative, and there is room for analyzing the economic and legal conditions under which the table is adopted.
5. Effective analysis of economic and legal conditions: evaluation of the relationship between market power/dominant position of the involved agents.
6. Evaluation of adjacent elements/specifics to the evidentiary set: assessment of mechanisms of coercion, threat, and boycott; analysis of relationships between market links or between different entities/agents/professionals. This test was systematized in the scheme below, illustrating the different presumptions outlined above:

 What, then, are the limits separating cartels from price tables? In line with the hermeneutic algorithm proposed by Counselor Diogo Thomson, the most relevant distinction would be the target of the table. A table directly related to final consumers is equated to a cartel, while other tables offer more avenues for the accused to defend themselves.

²  Administrative Procedure No. 08700.000284/2022-72.

O conteúdo A Hermeneutic Algorithm for Price Tables: The Case of the Goiás Real Estate Brokers Council aparece primeiro em Grinberg Cordovil Advogados.

The main difference is that the Cease-and-Desist Agreement does not require an admission of guilt, but only the acknowledgment of objective responsibility for the act in question. This means that there is not necessarily a conviction at the end of the investigation. Additionally, the new ordinance includes provisions on criteria for reducing fines and mitigating sanctions that restrict the ability to bid and contract with the public administration.

The new instrument also indicates a greater emphasis by the CGU on encouraging the adoption or improvement of integrity programs and on the reparation of damages caused.

Normative Ordinance CGU 155/24 was published on August 29, 2024, and came into effect on the date of its publication. It revokes Normative Ordinance CGU 19/2022.

O conteúdo Normative Ordinance CGU 155/24 aparece primeiro em Grinberg Cordovil Advogados.

Reporting Commissioner Gustavo Augusto voted to dismiss the split proceeding (Administrative Proceeding No. 08700.001805/2017-41) on the grounds that the case had remained paralyzed for more than three years (interim statute of limitations). The Reporting Commissioner’s vote was in line with the Public Attorney’s Office (PROCADE) opinion on the case. The Federal Public Prosecutor’s Office at CADE (“MPF”) and CADE’s General-Superintendence (“GS/CADE”) did not recognize the occurrence of the interim statute of limitations and opined that the defendant should be convicted.

Commissioner Carlos Jacques issued a vote noting that there is no consensus on (i) what the possible interruptive milestones of the interim statute of limitations are, (ii) how “fact finding” should occur and (iii) whether procedural acts or even the dismissal of the original cases constitute an interruptive milestone of the interim statute of limitations. Considering the case law of the Brazilian courts and previous CADE decisions, Commissioner Carlos Jacques concluded that instructional acts issued in the original proceeding should also be considered interruptive milestones in the split proceeding, since the investigated party was already being processed in the original one, which was split only due to the defendant’s health condition.

Most of the commissioners agreed with Commissioner Carlos Jacques and voted to convict the defendant. CADE’s President, Alexandre Cordeiro, voted against the conviction, aligning with the vote of Reporting Commissioner Gustavo Augusto. According to CADE’s Presidente, the wording of Article 1, §1 of Law No. 9,873/1999 is clear in stating that “The statute of limitations runs in administrative proceedings that have been paralyzed for more than three years (…)”, which precludes the interpretation that an instructional act in the original proceeding can interrupt the statute of limitations in the split proceeding. In other words, the analysis should be done individually (checking each proceeding specifically), and the split proceeding on the Sea Salt Cartel had indeed remained paralyzed for more than three years.

At the end of his vote, CADE’s President emphasized the need for CADE’s Tribunal to deepen and clarify the understanding of the Brazilian antitrust authority regarding the statute of limitations. In this regard, the new Public Attorney General at CADE, André Luís Macagnan, mentioned that PROCADE had already started a study on the subject.

O conteúdo CADE convicts a Sea Salt Cartel individual and rekindles the discussion on the interim statute of limitations aparece primeiro em Grinberg Cordovil Advogados.

CADE’s initial concern stemmed from advertising campaigns by companies offering access to databases of employee compensation and benefits across different employers. According to CADE, sharing sensitive information about employment terms could lead to salary uniformity.

To assess potential violations, CADE contacted the National Data Protection Authority (ANPD) and the benchmarking service providers. The investigation revealed diverse data sources used by these companies, including third-party data, public and private data, and that they have different business models. CADE also concluded that there were no competition concerns: the information provided by the companies contacted did not allow a market agent to extract specific and sensitive information about their competitors – as the data was presented in an aggregated and anonymized manner.

In this sense, salary data was presented in non-specific formats, such as:

1. Quartiles: based on a reference value, a percentage is indicated as being above or below the reference value. E.g., the 1st quartile indicates a value where 75% of the reported salaries are higher than this level and 25% are lower;
2. Averages: the value of the sum all reported salaries for a position divided by the number of reports; or
3. Ranges: presenting the lowest and highest reported value.

Regarding companies, the data could be aggregated considering:

1. Size or Revenue: E.g., managers in small companies or up to a certain revenue receive salaries within a specific range;
2. Region: E.g., managers in São Paulo receive salaries within a certain range.

These aggregation methods prevented identifying individual salaries and/or specific companies.

Therefore, CADE’s recent decision solidifies key guidelines for sharing compensation information, such as: i) not individualizing salary values – aggregating this information in ranges, averages, or quartiles; and/or ii) anonymizing the companies to which the remuneration refers – aggregating them by size or region. These precautions ensure the legality of data sharing.

O conteúdo CADE: Limits Between Benchmarking and the Exchange of Sensitive Information aparece primeiro em Grinberg Cordovil Advogados.

FTC Chair Lina Khan emphasized the importance of this new regulation, stating that “non-compete clauses suppress wages, stifle innovation, and deprive the American economy of its essential dynamism.” According to FTC estimates, abolishing these clauses could result in the annual creation of over 8,500 new companies, as well as a significant increase in workers’ wages.

The american Chamber of Commerce challenged the ban on non-compete clauses, arguing that it is unnecessary, illegal, and represents a blatant power grab. Additionally, several business associations stated that the proposed rule hinders rather than protects competition, and that agreements are crucial for small businesses, which may face the risk of losing executives, employees, or important partners to larger companies, as well as the risk of sharing sensitive information.

The deadline for the rule to take effect is 120 days after its publication (which has not yet occurred), providing companies with a period to adapt to the new requirements.

The rule can be accessed via the following link.

O conteúdo FTC establishes new rule banning non-compete clauses in the United States aparece primeiro em Grinberg Cordovil Advogados.

In the first panel, DECEX explained how works the coordination between the Federal Revenue and the Foreign Trade Intelligence Group – GI-CEX, and the non-automatic licensing regime. GI-CEX produces reports and receives charts. However, the measures from each sphere are independent, respecting their autonomy and competence. The licensing regime can be an effective measure in combating fraud since licensing occurs before customs clearance, and the importer must wait for the importation goods release.

Another front is the action against false declaration of origin, which is conducted based on an investigation opened after a complaint from the domestic industry, importers, or ex-officio (in this case, the Government verifies data that only it has access to). In these cases, Secex may also communicate with authorities from other countries.

The Federal Revenue, in turn, highlighted customs risk management and enforcement and control actions within the scope of clearance. The main customs frauds are fraudulent intermediation and imports under-invoicing. Today, there is a difficulty in identifying frauds, as they are more complex and overlapping. However, it was noted that the RFB has automated systems that verify data and detect potential irregularities, which help in the investigation of illegal activities.

Despite technological advances and systems integration, the authorities highlighted the important role of companies from each sector in identifying fraud and other illicit activities. Given their expertise and close monitoring, businesses and sectoral entities are able to detect possible frauds more quickly and accurately. For this reason, they reinforced the promotion of complaint channels and dialogue with the authorities, if necessary.

O conteúdo Comex: Secex and Federal Revenue of Brazil announce joint efforts aparece primeiro em Grinberg Cordovil Advogados.

 The V+ Guide defines the concepts of vertical integrations and conglomerate mergers and presents the analysis procedures, from defining relevant markets to considering possible antitrust remedies. The proposed analysis methodology aligns with the majority of antitrust agencies worldwide, involving assessing the ability to cause anticompetitive harm, incentives to act according to the damage theory, and expected post-concentration effects.

 The document is the result of discussions and collaborations conducted by a Working Group composed of representatives from all CADE units and IBRAC. Additionally, economic agents, experts, and civil society also had the opportunity to contribute to the V+ Guide through a public consultation.

 The V+ Guide is not binding or normative, meaning that the analytical process conducted by CADE will be adapted to each specific case.

 The guide can be accessed via the following link.

O conteúdo CADE publishes guide for non-horizontal merger reviews aparece primeiro em Grinberg Cordovil Advogados.

1. What are the criteria for analyzing mandatory notification?

CADE’s Tribunal concluded that, in transactions involving companies, the respective economic groups must be evaluated based on their controlling entities. In other words, the economic group will be composed of the party directly involved in the transaction, its controlling entities and the companies in which these entities hold control or at least 20% of the share or voting capital.

If one of these entities is an investment fund, specific criteria must be applied. In other words, shareholders with participation (direct or indirect) equal to or greater than 50% of the fund’s shares must be incorporated into the economic group, as well as companies in which the fund holds control or at least 20% of the share or voting capital.

This decision replaces the CADE’s previous guidance that shareholdings equivalent to 20% or higher would presuppose some degree of control.

2. What are the elements that indicate, from the perspective of competition law, control of one company over another?

It was decided that the existence of control relationships for the purposes of characterizing an economic group arises from the rights attributed by the company’s governance documents (such as the shareholders’ agreement). CADE must analyze whether, for example, the rights to veto and appoint members of governance bodies are indicative of control or whether they are intended to merely protect investments. In order to allow greater objectivity in this segmentation, the Commissioner prepared two non-exhaustive lists:

The decision was unanimously approved by CADE’s Tribunal and should be used as a parameter in the analysis of future mergers.

O conteúdo Cade decision: definition of economic group for the purposes of notifying mergers aparece primeiro em Grinberg Cordovil Advogados.