Page 33 - COMPETITION LAW_Flip

COMPETITION LAW IN BRAZIL: 2018 OVERVIEW 33

Rodrimar and Tecon Rio Grande: port fees

In August, CADE ruled on two probes involving handling charges established
by containers port terminals. Both cases constitute examples of CADE’s concern with industries
marked by vertical integration – according to the agency, port terminals would be able to increase
costs of competing storage companies with unreasonable handling fees. Moreover, these cases
provide a view on how CADE sees arguments of antitrust immunity based on sectoral regulation.
CADE held that antitrust immunity only applies if the sectoral regulation establishes a legal
obligation to perform a given behavior. If a certain behavior is allowed under the sectoral
regulation but is not mandatory, it can be subject to antitrust scrutiny.

a) “Terminal Handling Charges”

The first investigation looked into a fee charged from custom warehouses by
one of the container terminal at Santos Port, the largest in Brazil, following a complaint filed by
Marimex against Rodrimar . A similar behavior by other container terminals has been investigated
13
and condemned by CADE in several other opportunities.
In brief, the vessel chooses a specific terminal to disembark the containers
(the upstream market). The receiver of the container hires a company to store the container and
proceed with customs check (downstream market). Players in the warehousing market accused the
terminal operators of abuse of dominance as they started to charge a separate fee for delivering
the containers to the warehousing companies (on top of the fees charged from the vessel to handle
the cargo). CADE held that terminal operators were an essential input/facility after the vessel
had chosen where to disembark because they were unique alternative for storage companies to
retrieve a given container assigned to them. CADE considered that the fee charged was able to
impair rivals’ ability to compete and did not have legitimate business justifications because port
terminals should be able to recoup investments and costs with fees charged from the vessels.
While the Brazilian regulator of water transports (ANTAQ) had issued a
regulation recognizing that port terminals could charge a delivery fee from warehousing companies,
CADE held that there was no antitrust immunity. According to CADE, ANTAQ’s regulation
does not establish a legal obligation to charge storage companies, but merely recognizes that
port operators can choose to do so. Because the behavior was not mandatory under the sectoral
regulation, a majority of CADE’s Commissioners held the conduct was unlawful under the
antitrust law and imposed a fine of roughly BRL 973,000 on Rodrimar.
In a dissenting opinion, Commissioner Cristiane Alkmin argued that the probe
should be closed without any penalty against Rodrimar. According to the dissenting opinion,

13 See Administrative Process
No. 08012.001518/2006-37.