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COMPETITION LAW IN BRAZIL: 2018 OVERVIEW 39

Finally, 16 new TCCs related to the THE TRIBUNAL STATED THAT
Operation Car Wash were approved by CADE. Altogether, HAS PREVIOUSLY RULED
the settlements will imply in BRL 897.9 million in AGAINST ALL TYPES OF
payments (spread over 20 years). The novelty regarding MANDATORY PRICES OR FEES
the case is that CADE approved a new sort of clause. AND ONLY ALLOWS THEM IN
According to such clause, if the firms and individuals that VERY FEW CIRCUMSTANCES.
signed the TCCs prove they payed judicial or out of court THE DECISION
damages for the same facts under CADE’s investigation, CORROBORATED CADE’S
the antitrust authority may qualify them for a 15% discount. CURRENT MAJORITY POSITION
THAT PRICE LISTS PUBLISHED
BY INDUSTRY ASSOCIATIONS
Minimum road freight prices: ARE PER SE ILLEGAL, I.E., THE
Query leads to investigation SIMPLE ACT OF PUBLISHING
MANDATORY PRICES, EVEN IF
CADE’s Tribunal unanimously THEY ARE NOT IMPLEMENTED,
decided to convert a Query on minimum road freight IS AN ANTITRUST VIOLATION.
prices into an investigation of anticompetitive practices .
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The Query was filed by the Itajai Association of Independent Cargo Transporters (SINTRACON)
and the Association of Logistics and Cargo Transport Vehicle Companies in Itajai and
Surrounding Region (SEVEICULOS). The Query was on the legality of the minimum
freight prices drawn up and agreed by the consulting parties following the truck drivers’
strikes that took place in Brazil in May 2018.
The question was: “Is it lawful for Cargo Shipping Companies (CSCs) to
adopt mandatory, minimum freight prices when contracting haulage services from Autonomous
Cargo Transporters (ACTs), as per the Agreement entered into by the Associations?”. The Tribunal
unanimously agreed that minimum pricing could restrain competition.
The Tribunal stated that has previously ruled against all types of mandatory
prices or fees and only allows them in very few circumstances. The decision corroborated
CADE’s current majority position that price lists published by industry associations are
per se illegal, i.e., the simple act of publishing mandatory prices, even if they are not
implemented, is an antitrust violation.
In addition to responding to the consultation, the Tribunal held that some
of the documents supplied by the parties contained evidence of coordinated efforts by the
associations to standardize prices by implementing mandatory pricing. As a result, the
Query triggered an investigation on the efforts to influence the adoption of standardized
commercial practices.

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Query No. 08700.001540/2018-62.