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COMPETITION LAW IN BRAZIL: 2018 OVERVIEW 43

volume had suspended the statute of limitations. He therefore voted to dismiss the case against
all Respondents based on the 5-year administrative statute of limitations, rejecting application
of the interim time bar.
Maia’s opinion in favor of accepting the initial argument that the 5-year
time bar applied was out-voted. Commissioners Cristiane Alkmin and Paulo Burnier and the
Reporting Commissioner held the 12-year statute of limitations should apply in cartel cases,
whether or not there is a criminal investigation or conviction. As such, the case was not time-
barred. Commissioner Polyanna Vilanova did not attend the session and Commissioner Paula
Azevedo recused herself.
Maia’s opinion was again reviewed on the merits. The Commissioner
had argued that the evidences were insufficient to prove collusion. He held the evidence
revolved around written documents obtained during a search and seizure operation, especially
a personal diary containing unilateral notes that were unclear about the practices under
investigation. Maia claimed this evidence was circumstantial and was not concrete proof of
anticompetitive conduct.
On the other hand, the minutes of AS ALCOA HAD NOT
ABRAFLEX and ABIEF meetings did provide sufficient GENERATED ANY
evidence the associations had encouraged their members REVENUES FROM THE
to act in collusion. Therefore, given the lack of evidence, BUSINESS AFFECTED
Commissioner Maia voted to dismiss the case against BY THE CARTEL IN THE
all Respondents for cartel formation, but to convict YEAR BEFORE THE CASE
ABRAFLEX and ABIEF for their attempts to implement BEGAN, BURNIER HELD
concerted practices. He voted to fine each association 5 THAT IT SHOULD BE
thousand UFIR, as there was no evidence their conduct FINED THE MAXIMUM AMOUNT
had actually had any effect. ALLOWED BY LAW NO.
Commissioner Burnier then joined 8,884/94, OR 6 MILLION UFIR.
the Reporting Commissioner’s opinion on the merits, HE PROPOSED REDUCING
but dissented on the sanctions. The Commissioner THE FINES AGAINST CANGURU
suggested splitting the companies into two groups: (i) EMBALAGENS AND SANTA
Inapel, Converplast, Alcoa and Diadema, which had been ROSA BY HALF BECAUSE
actively involved in the alleged cartel; and (ii) Peeqflex, THEY WERE IN
Canguru Embalagens, Santa Rosa and Celocorte, whose COURT-SUPERVISED
collusion was limited or passive. The first group would REORGANIZATION. HE ALSO
be fined 15% of gross revenues generated by business VOTED TO FINE ABRAFLEX
areas affected by the cartel in the year preceding the 2.5 MILLION UFIR.
case, fining the second group 12%.