Page 42 - COMPETITION LAW_Flip

42
CARTELS

been included in the investigation, but against which there was evidence of involvement in the
anticompetitive practices.
The Commissioners voted to apply a fine based on a percentage of the
cartel surcharge, which was at 10%. Such percentage was applied to the “flexible packaging
revenues [...] during the period of involvement” of each company. The calculation also took
into account aggravating and mitigating circumstances, as well as the 20% cap on gross
revenues in the year before the administrative process were brought.
Turning to respondents Santa Rosa Embalagens Flexíveis and Canguru
Embalagens, which are currently under court-supervised reorganization, a cap representing
10% of 2006 gross revenues from the flexible packaging business was proposed to avoid
the fines interfering with the companies’ ability to continue operating. The Reporting
Commissioner proposed fining the industry associations the maximum amount permitted by
Law 8884/1994, which was 6 million UFIR (slightly
more than BRL 6 million). ON THE OTHER HAND,
Commissioner Mauricio Maia then THE MINUTES OF
asked to review the case file and the session was suspended. ABRAFLEX AND ABIEF
The judgment resumed when the Commissioner submitted MEETINGS DID PROVIDE
his opinion. In a nutshell, Maia held that, based on SUFFICIENT EVIDENCE
a preliminary analysis, CADE could only apply the THE ASSOCIATIONS
12-year criminal statute of limitation instead of the HAD ENCOURAGED
administrative 5-year statute of limitation if there was THEIR MEMBERS TO
an ongoing criminal case or a criminal conviction based ACT IN COLLUSION.
on the same issues analyzed by CADE. THEREFORE, GIVEN THE
Maia noted that criminal proceedings LACK OF EVIDENCE,
were brought against some of the r espondents after CADE COMMISSIONER MAIA VOTED
had initiated administrative process, however the criminal TO DISMISS THE CASE
case was settled. This meant CADE cannot apply the 12- AGAINST ALL RESPONDENTS
year criminal statute of limitation against Respondents. FOR CARTEL FORMATION,
Maia therefore accepted that the 5-year time bar applied as BUT TO CONVICT ABRAFLEX
more than five years had passed between the initiation of AND ABIEF FOR THEIR
the administrative process and the conviction by CADE, ATTEMPTS TO IMPLEMENT
considering occasional interrupting acts. CONCERTED PRACTICES.
Nevertheless, he agreed with the HE VOTED TO FINE EACH
Reporting Commissioner that it was wrong to apply the ASSOCIATION 5 THOUSAND
interim time bar, as the notice issued to Respondents UFIR, AS THERE WAS
requesting additional information on turnover and sales NO EVIDENCE THEIR
CONDUCT HAD ACTUALLY
HAD ANY EFFECT.