Both cases involved the acquisition of properties for the storage of bulk solids, which is the acquiring company’s core activity, making these transactions subject to CADE’s approval. In both cases, the transactions were reported to CADE after payment had been fully made in one instance and 88% completed in the other; furthermore, the acquiring party had already taken possession of the acquired properties.

The importance of this case lies in CADE’s conclusion that the full payment in one case and near-complete payment in the other, along with the possession of the acquired properties, constituted the consummation of the transactions without prior approval from CADE. This led to the imposition of sanctions on the parties for the practice of gun jumping.

O conteúdo Cade adjudicates cases involving Gun Jumping accusations aparece primeiro em Grinberg Cordovil Advogados.

In this specific market, since 2018 (following an extensive truck drivers’ strike), the National Land Transport Agency (ANTT) has issued, via ordinances, tables with minimum freight prices. The issuance of these tables is authorized by Law 13,703/2018, which is currently the subject of Direct Actions of Unconstitutionality (ADIs 5,969 and 5,965). However, until the ADIs are ruled on by the Supreme Federal Court (STF), the law remains fully in force.

The judgment clarified that if the Union’s tables—presented as mandatory—had adhered to ANTT’s tables, there would be no competition issue. However, since the Union’s tables exhibited higher prices, Sintracon/SC was condemned for anti-competitive practices.

O conteúdo Cade condemns Sintracon/SC for illegal price-fixing aparece primeiro em Grinberg Cordovil Advogados.

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.

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.

 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.

Read the full programme.

O conteúdo Annual Competition Conference – IBA Antitrust Section aparece primeiro em Grinberg Cordovil Advogados.