Cade’s enforcement against anticompetitive conduct
Brazil’s antitrust authority continues to apply interim measures and non-pecuniary penalties
2023 has seen the Administrative Council for Economic Defense (Cade) continue its policy of increasingly applying interim measures in anticompetitive conduct cases.
On August 17, 2023, Cade’s General Superintendence (GS) launched an investigation against the Brazilian state-owned bank Caixa Econômica Federal (CEF) and the Association of Brazilian Lottery Companies (Febralot). The investigation was triggered by a complaint filed by the Brazilian Association of Online Lottery Intermediaries (Aidiglot), a private association representing online lottery platforms’ interests (Administrative Inquiry No. 08700.003430/2023-01). Aidiglot alleges that CEF and Febralot hinder lottery platforms’ access to the online gaming intermediary market through sham litigation, defamatory campaigns and regulatory abuse, among other forms of behavior. After conducting preliminary analysis, the GS decided to grant an interim measure to prevent CEF from penalizing lottery units conducting business with lottery game intermediation platforms. CEF then appealed to Cade’s Tribunal, only for it to uphold the interim measure against CEF in a panel session on October 11, 2023.
In July 2023, in light of a complaint filed by health insurance company Unimed Goiânia, the GS opened an administrative inquiry concerning alleged anticompetitive conduct by an association of hospitals in the central Brazilian state of Goiás (Associação dos Hospitais Privados de Alta Complexidade do Estado de Goiás – AHPACEG). AHPACEG and its members were alleged to have conducted collective price negotiations between hospitals and health insurance providers and a boycott of commercial offers made by Unimed Goiânia (Administrative Inquiry No. 08700.004116/2023-37). Less than one month after the interim measure was granted in the lottery operator case, the GS applied the same legal tool once again, requiring AHPACEG to cease collective price negotiations with health insurance companies. This investigation is still ongoing.
These cases reflect the ongoing preference of the GS to apply interim measures at the beginning of investigations to address potential anticompetitive effects arising from these conducts. The Unimed Goiânia case particularly stands out as it concerns an interim measure against the collective behavior of AHPACEG and its members, unlike previous cases concerning unilateral conducts.
Non-pecuniary penalties in cartel cases
Another important development concerns debates on the types of penalties. Law No. 12,529/2011 provides that as well as imposing fines on companies and individuals, Cade can apply non-pecuniary penalties for violations of the economic order. Cade’s Tribunal recently addressed this issue in the case of a cartel in the fuel resale markets in the state of Santa Catarina (Administrative Proceeding No. 08700.005637/2020-69). In ruling on this case, Cade’s Tribunal prohibited two entrepreneurs from engaging in any commercial activities – whether in their own names or as representatives of companies – for five years.
Cade Commissioner Gustavo Augusto also noted that the Tribunal has repeatedly convicted cartels in the retail fuel sector, suggesting that fines alone may be insufficient to enforce anticompetitive conduct.
This decision points to Cade’s Tribunal’s willingness to impose stronger penalties on coordinated anticompetitive conduct, especially those forms that the authority has repeatedly had to address.
For further information on antitrust matters in Brazil, please contact Mattos Filho’s Antitrust practice.