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.

This request represents an important first step following the execution of a Concentration Control Agreement (ACC), on October 16, between the Administrative Council for Economic Defense (CADE) and the Oben Group as a condition for approving Oben’s acquisition of Terphane.

Based on a study conducted by CADE’s Department of Economic Studies (DEE-CADE) and responses to requests for information from companies operating in the sector, Reporting Commissioner Victor Fernandes concluded that the maintenance of anti-dumping measures on imports of PET film would constitute a significant barrier to imports into Brazil.

According to the Commissioner, those measures would hinder the entry of new competitors, increase the cost to importers of BOPET sourced from the producing regions and reduce the competitiveness of imports in the domestic market.

In light of these considerations, the parties negotiated the ACC that foresee the following undertakings regarding anti-dumping measures[2]:

1. To request the immediate termination of anti-dumping duties on imports of BOPET from Peru, Bahrain, the United Arab Emirates and Mexico;
2. To not request the reinstatement of suspended anti-dumping duties on imports of BOPET from China, or the renewal of anti-dumping duties on imports from China, India, and Egypt;
3. To not request the initiation of new investigations for the imposition of anti-dumping duties on imports of BOPET from India, Egypt, Peru, Bahrain, the United Arab Emirates, China and Mexico, for a period of five years.

The ACC also stipulated that the merged company may not require exclusivity from distributors operating in Brazil, or make use mechanisms that could lead to tariff or non-tariff alterations that would increase the cost of imports of BOPET. Existing countervailing measures were not addressed or limited by the ACC.

As highlighted in the decision, this outcome reflects an important institutional dialogue between CADE and the Trade Defense Department of the Secretariat for Foreign Trade (DECOM/SECEX/MDIC) which aims at promoting effective competition in the Brazilian BOPET film market and address the competition concerns identified.

[1]  https://www.in.gov.br/web/dou/-/circular-n-64-de-18-de-novembro-de-2024-596563079

[2]https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?HJ7F4wnIPj2Y8B7Bj80h1lskjh7ohC8yMfhLoDBLddZsvmjZILDQspDmgL9xEemz0O_q0-emljCBhE2YV9cwoZvaRGYPRD-sjXLwiCairnp1PQ7lSbsrIvxE1xVhRikr

O conteúdo PET Film producer requests termination of anti-dumping duty sunset review following agreement approved by CADE 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.

1. The Justifications for the New Regulatory Measures

The Ministry’s report provides a comprehensive review of the current state of digital platforms, emphasizing the significant role they play in connecting consumers, service providers, and advertisers. According to the report, platforms benefit from strong network effects, meaning that their value grows as more users join. This same dynamic has led to market dominance by a few large players, limiting competition and raising concerns about data privacy.

Drawing from international examples, the report compares the Brazilian proposal to regulatory models in the United States, the European Union, the United Kingdom, and Japan. It concludes that current antitrust laws are insufficient to address the unique challenges posed by digital platforms. In response, the Ministry opted for a hybrid regulatory approach that combines preventive measures seen in Europe with reactive mechanisms that are, in principle, more flexible and adaptable to each platform and/or specific service provided to users.

The report indicates that the proposals will be presented to Congress in the coming months, possibly through a government-backed bill. Legislative changes are essential to grant CADE, Brazil’s competition authority, the power to designate certain platforms as “gatekeepers” (or, in the adopted terminology, systemically relevant platforms) and to impose specific obligations on them.

2. Key Proposals from the Report

The Ministry’s report includes several key proposals, summarized below:

Proposal 1: Designating Systemically Relevant Platforms

A new legal instrument will allow CADE to designate systemically relevant economic agents in digital markets based on a combination of qualitative and quantitative criteria. This designation will identify platforms that possess significant market power due to their size, user base, and role in multi-sided markets.

• Qualitative criteria: Platforms with strong network effects, multi-sided markets, access to large amounts of personal and commercial data, and the provision of multiple digital services will be considered.
• Quantitative criteria: Minimum revenue thresholds will ensure that only large economic players are subject to designation, avoiding overregulation of smaller companies.
• Designation process: The process can be triggered by CADE or third parties, including civil society organizations, with all decisions subject to approval by CADE’s Tribunal.

Proposal 2: Substantive obligations

Once designated, the platforms may be subject to general and specific obligations, as assessed by CADE. These obligations aim to ensure fair competition and provide clarity to consumers and other stakeholders.

• General obligations: Designated platforms may be required to notify CADE of any mergers or acquisitions and adhere to transparency requirements related to their services and products.
• Specific substantive obligations: These can include both positive and negative requirements, such as modifying business practices, ensuring data access to third parties, and enabling interoperability with other platforms. Platforms may also be restricted from self-preferencing, a practice where they prioritize their own services over those of competitors.
• Monitoring and compliance: Platforms will need to provide regular reports to CADE, demonstrating compliance with both general and specific obligations.

Proposal 3: Modifications to CADE’s structure

CADE will have the authority to impose obligations on designated platforms based on a thorough investigation of each company’s business model. These obligations will be tailored to address the specific risks posed by each platform. A specialized unit within CADE should be created to manage the designation process and monitor the obligations imposed on these platforms. This unit will collaborate with other regulators, such as ANATEL (the telecommunications agency) and ANPD (the data protection authority), to ensure sector-specific compliance.

3. The full list of proposals

The proposals focus on establishing new legal instruments for designating systemically relevant platforms and adjusting existing antitrust tools to better address the unique challenges posed by the digital economy. According to the report and the speeches during the press conference, these measures aim to enhance competition, transparency, and regulatory oversight in multi-sided markets, ensuring that platforms with significant market power are subject to appropriate scrutiny and obligations.

The proposals also emphasize the importance of collaboration between regulatory bodies to ensure effective enforcement and compliance in the rapidly evolving digital landscape.

Group 1 – New Instrument for Promoting Competition in Systemically Relevant Platforms

• Proposal 1: Establish a procedure for designating systemically relevant platforms based on qualitative and quantitative criteria, such as multi-sided markets, network effects, and revenue thresholds.
• Proposal 2: Introduce procedural and transparency obligations for designated platforms, including prior merger notifications and transparency in services and terms of use.
• Proposal 3: Allow CADE to investigate designated platforms and impose specific substantive obligations to address competition concerns.
• Proposal 4: Create a specialized unit within CADE to implement and monitor the new pro-competitive tool for designated platforms.
• Proposal 5: Implement substantive obligations in collaboration with regulators like ANATEL and ANPD to address technical and sector-specific concerns.
• Proposal 6: Strengthen CADE’s capabilities for conducting market studies, granting proactive analysis power to the Department of Economic Studies.
• Proposal 7: Create an inter-institutional cooperation forum between CADE and other federal bodies to facilitate information exchange and collaboration on digital market issues.

 Group 2 – Adjustments to the Application of Antitrust Tools for Platforms in General

• Proposal 8: Update antitrust analysis tools to incorporate network and ecosystem analyses for assessing competitive risks in digital platforms.
• Proposal 9: Revise CADE’s merger notification form to include specific questions on digital market dynamics, such as network effects and data use.
• Proposal 10: Adopt the ordinary process for analyzing mergers involving digital platforms with a large number of users, allowing for deeper analysis.
• Proposal 11: Use the flexibility of Law 12,529/2011 to require merger submissions that pose competitive risks, even if they do not meet notification criteria.
• Proposal 12: Update revenue thresholds for prior merger notifications to focus CADE’s resources on transactions with greater competitive impact.

4. Looking Ahead

The Ministry emphasized that this regulatory framework aims to create a balanced approach, ensuring that digital platforms contribute to a competitive, transparent, and fair market in Brazil. The proposals will undergo further scrutiny once presented to Congress, and the Ministry anticipates that discussions will continue in the coming months.

O conteúdo Brazilian Ministry of Finance Proposes New Regulatory Framework for Digital Platforms 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.