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.