Page 34 - COMPETITION LAW_Flip

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SINGLE-FIRM CONDUCT

Rodrimar had a share of only 9% in the market of container terminals in the Santos Port, and
5% share in the container warehousing market; such market shares would be too low to allow
Rodrimar to eliminate competitors. Ms. Alkmin also noted that Rodrimar’s behavior was lawful
under ANTAQ’s regulations, so the company should not be punished for acting in accordance
with sectoral regulation. Finally, she highlighted there was no evidence of harm to competition
since warehouses were not excluded from the market. This dissenting opinion reveals several
fractures in the theory used in this line of cases. It shows that antitrust action against port terminals
for charging handling fees is questionable and strengthens the plaintiffs’ cases against CADE in
lawsuits seeking the annulment of the administrative orders.

b) “Trustee fee”

During the same judgement session in August, CADE’s Tribunal ruled on an
investigation regarding the charge of a “trustee fee” by port operator Tecon Rio Grande . The
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probe was initiated after a complaint was filed by Multi Armazéns and Transportadora Simas
arguing that Tecon Rio Grande abused its dominant position. According to most Commissioners,
Tecon Rio Grande abused its dominant position by increasing rivals’ costs via the “trustee fee”,
which was supposed to cover costs with insurance. In CADE’s view, the “trustee fee” had the
same problems of the handling fee discussed above.
Similarly, Commissioner Cristiane Alkmin dissented, arguing that the probe
should be closed since Tecon Rio Grande’s behavior was lawful under ANTAQ’s regulations.
Commissioner Joao Paulo de Resende also voted to close the probe, holding that there was no
evidence of harm to competition. Again, the two dissenting opinions highlight many flaws in
CADE’s theory and reinforce the need to rethink the accusations in this line of cases.

Continental: resale price advertising

In October, CADE’s Tribunal held by a majority decision that Continental’s
minimum prices policy was lawful . Continental voluntarily submitted this question to CADE
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as a formal consultation. Continental planned to implement a policy of minimum prices for
advertisements of tires for light commercial vehicles and passenger cars. As a result, retailers
would be prevented from advertising the sale of Continental’s tires below certain prices.
Continental argued that this policy intended to protect its business model, which
depended on specialized resellers (investing in qualified staff and services). Continental explained
the policy would only apply to advertised prices and was not an attempt to fix resale prices.

14 See Administrative Process
No. 08700.008464/2014-92.
15
See Query No. 08700.004594/2018-80.