{"id":5586,"date":"2023-10-30T11:01:46","date_gmt":"2023-10-30T14:01:46","guid":{"rendered":"https:\/\/www.cascione.com.br\/?p=5586"},"modified":"2024-06-06T14:01:04","modified_gmt":"2024-06-06T17:01:04","slug":"english-brazilian-competition-case-law-trade-trends-october-2023","status":"publish","type":"post","link":"https:\/\/www.cascione.com.br\/en\/english-brazilian-competition-case-law-trade-trends-october-2023\/","title":{"rendered":"Brazilian Competition Case Law, Trade & Trends | October 2023"},"content":{"rendered":"

$\"\"$ <\/h1>\n

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ANTITRUST & COMPETITION<\/h2>\n

Cascione\u2019s team is recognized by the Legal 500 ranking<\/strong><\/h3>\n
Cascione\u2019s Antitrust team was, once again, recognized and ranked by the Legal 500, one of the most distinguished publications of the legal market, as one of the best law firms in Competition & Antitrust in Brazil.<\/p>\n
The publication highlighted the team\u2019s \u201cexcellence in quality<\/em>\u201d and \u201ctechnical and practical approach<\/em>\u201d, in addition to emphasizing the work of the partner Denise Junqueira, who is \u201cobjective and accurate\u201d and \u201cable to draw on her experience as an economist to advise high-profile companies in the gamut of antitrust and international trade matters<\/em>\u201d.<\/p>\n
Additionally, for the 3^{rd<\/sup> consecutive year, partner Denise Junqueira was recognized as a \u201cNext Generation Partner\u201d, while senior associate Ma\u00edra Isabel Saldanha Rodrigues was ranked as \u201cRising Star\u201d, nominations given to individuals who stand out in the antitrust practice. Mayara Lins Ogea, associate who joined Cascione\u2019s Team in Oct. 2023, was also ranked as \u201cRising Star\u201d.<\/p>\n}
We greatly appreciate the trust and support of our clients!<\/p>\n
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CADE orders the filing of MaxMilhas\u2019 acquisition by 123 Milhas post-merger<\/strong><\/h3>\n
On October 25, 2023, the Tribunal of the Administrative Council for Economic Defense (\u201cCADE\u201d) found that Travel Platform 123 Milhas acquisition of rival MaxMilhas must be filed for antitrust review, even though the deal does not meet the pre-merger notification threshold. According to CADE\u2019s Tribunal, a posteriori<\/em> merger filling is necessary due to potential competition risks given the significant horizontal overlap.<\/p>\n
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CADE conditionally approves LGP’s competitors consortia <\/strong><\/h3>\n
On August 18, 2023, CADE\u2019s Tribunal conditionally cleared the formation of two consortia between the companies Ultragaz, Bahiana Distribuidora, Supergasbras and Minasg\u00e1s, competitors in the bulked Liquefied Petroleum Gas (LPG) sector, covering the sharing of filling plants and depots. The transaction was assessed by the Tribunal after an appeal from an interested third party.<\/p>\n
Two Commissioners, Luis Braido and Lenisa Prado, voted to block the transaction. According to them, the transaction would potentially lessen competition between the consortium members, create barriers to entry, as well as result in higher prices and decreased service quality, innovation, and investments. On the other hand, the Tribunal\u2019s majority decided to clear the transaction conditioned to the fulfilment of remedies aimed at addressing the potential exchange of competitively sensitive information between the shareholders and the risks of market foreclosure (e.g., by obligating the parties to grant access of the shared units to any requesting third parties, in case of idle capacity).<\/p>\n
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CADE conditionally clears DPA Brasil\u2019s acquisition by Lactalis<\/strong><\/h3>\n
On October 11, 2023, CADE\u2019s Tribunal conditionally cleared the acquisition of DPA Brasil, currently held by Fonterra and Nestl\u00e9, by Lactalis do Brasil.<\/p>\n
During its analysis, CADE found that the horizontal merger would increase market concentration in several segments of the dairy products industry, and that brands – such as the ones owned by the parties \u2013 played a crucial role in consumers\u2019 purchase decision and in rivals\u2019 ability to challenge market power. To address the competitive concerns, the parties proposed a merger control agreement that included the obligation to license two DPA\u2019s brands of the fermented milk and petit suisse segments, \u201cBatavo\u201d and \u201cBatavinho\u201d, to competitor Tirol Lactic\u00ednios. CADE\u2019s Tribunal approved the proposed agreement and conditioned the transaction\u2019s closing to the conclusion of such licensing agreement.<\/p>\n
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Company settles gun jumping probe triggered by the exercise of political rights prior to CADE\u2019s clearance<\/strong><\/h3>\n
On September 27, 2023, CADE\u2019s Tribunal approved a BRL 2.3 million agreement that settled the charges brought against a Netherlands-based investment company for allegedly implementing a transaction subject to mandatory merger control before the authority\u2019s clearance upon the exercise of the political rights related to shares acquired in stock exchange.<\/p>\n
The company spontaneously submitted the transaction to CADE\u2019s merger control analysis. However, the filing occurred after the buyer had exercised its political rights by voting at the target\u2019s annual general meeting.<\/p>\n
<\/p>\n
CADE clears JV between ground transportation\u00b4s rivals with remedies aiming at the JV\u2019s independence<\/strong><\/h3>\n
CADE\u2019s Tribunal conditionally cleared the formation of the Joint Venture \u201cBusCo\u201d between rivals Via\u00e7\u00e3o \u00c1guia Branca and JCA Holding Transportes, Log\u00edstica e Mobilidade, aimed at providing interstate ground passenger transportation services through a digital platform by partnering with players in the ground transportation business.<\/p>\n
According to CADE\u2019s Tribunal, the transaction raised competition concerns, given that the JV BusCo would access strategic information and control competitively sensitive variables from different competitors and it could potentially use its position to coordinate rivals prices, schedules and routes. The merger control agreement established measures to guarantee the JV\u2019s independence from its shareholders and avoid illegal exchange of competitively sensitive information. Finally, the remedies also prevent the JV from operating on current and future ground routes where the activities of its shareholders overlap, ensuring that they continue to compete with one another and with other players.<\/p>\n
<\/p>\n
Ambev settles with CADE in exclusivity clause probe<\/strong><\/h3>\n
On October 11, 2023, CADE\u2019s Tribunal approved a settlement agreement to close an investigation against Ambev for allegedly abusing its dominant position in the beer market. Ambev was being accused of imposing exclusive dealing arrangements with cold beer sales points for immediate consumption and raising barriers to entry.<\/p>\n
Among the terms of the settlement agreement, Ambev agreed to limit exclusivity agreements to (i) 6% of the sales points and 12% of the sales volume in each Brazilian state; (ii) 8% of the sales points and 20% of the sales volume in capitals or cities in which the population exceed one million inhabitants; and (iii) 15% of the sales points in the wealthiest regions of S\u00e3o Paulo, Rio de Janeiro and Bras\u00edlia cities. The agreement also prohibits Ambev to impose penalties in case of early termination of the agreement by the other party and to include preference clauses over future point of sales in Ambev\u2019s favor.<\/p>\n
<\/p>\n
CADE approves JV for the development of sustainability agricultural platform<\/strong><\/h3>\n
Cade\u2019s Tribunal unconditionally approved a JV formation between leading agricultural players to develop and operate a tech solution platform aimed at standardizing sustainability records and metrics in the food and agriculture supply chain.<\/p>\n
During its analysis, CADE\u2019s Tribunal identified two main antitrust concerns arising from the transaction: (i) potential competition foreclosure in different levels of the food-agriculture global supply chain by denying rivals access to the platform or by creating specific sustainability standards; and (ii) potential exchange and\/or access of competitively sensitive information related to competitors, customers, and suppliers.<\/p>\n
However, CADE found that, among other reasons, such concerns were already mitigated by the commitments established in the JV agreement and in an Antitrust Protocol devised by the parties, which included (a) prohibition on the use of the platform to exchange commercially and competitively sensitive information between competitors, (b) non-discriminatory treatment between platform users, including commitments on allowing platform access for all potential interested parties on fair and transparent terms, and (c) creation of a compliance program. Moreover, the parties also committed to the implementation of governance rules that guarantee the JV\u2019s independence and separates the JV\u2019s corporate structure from its shareholders.<\/p>\n
<\/p>\n
CADE debates the imposition of non-pecuniary sanctions to individuals<\/strong><\/h3>\n
Over the last judgment sessions, CADE\u2019s Tribunal has increasingly discussed the reasonableness of imposing non-pecuniary sanctions to individuals found liable for anticompetitive infringements.<\/p>\n
In recent cases, the majority of CADE\u2019s Commissioners have decided to adopt a more cautious approach as regards prohibiting individuals from continuing to trade on its own behalf or as a representative of a legal entity for a period of five years, given the potential onerous effects to society and the potential of hindering free enterprise principles. Therefore, the Tribunal majority agreed that such sanction should be exceptionally applied, considering cases in which a rigid stance is needed to ensure the deterrence of the anticompetitive practice \u2013 e.g., in cases of recidivism.<\/p>\n
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CADE publishes cartel-sentencing guidelines, and signals its approach to sanctioning exchange of competitively sensitive information conduct<\/strong><\/h3>\n
CADE launched a cartel-sentencing guidelines to establish the criteria for imposing pecuniary sanctions for cartel practices, which includes a detailed analysis of CADE\u2019s case law from 2012 to 2022. In the document, CADE establishes the recommended percentage rates to be applied to the turnover-based initial measure depending on the gravity or the seriousness of the infringement: (i) 17% for bid-rigging; (ii) 15% to hardcore cartels \u2013 i.e., \u201cagreements or exchange of information on prices, allocation of territory, market share or clients, that present monitoring\/punishment mechanisms (institutionalized) and (intention of) perpetuity<\/em>\u201d; and (iii) 8% to other concerted practices including diffuse cartels (e.g., occasional or not systematic exchange of information, unilateral disclosure of information, price suggestion by an entity, etc.).<\/p>\n
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<\/p>\n
INTERNATIONAL TRADE<\/h2>\n
Brazilian Foreign Trade Chamber ratifies antidumping duties applied to Empty Hard Gelatin Capsules from Mexico and USA<\/strong><\/h3>\n
In August, 2023, the Brazilian Foreign Trade Chamber dismissed the filed appeals, and ratified the Executive Committee of the Brazilian Foreign Trade Chamber\u2019s (\u201cGECEX\u201d) decision to impose antidumping duties, for up to five years, to the imports of empty hard gelatin capsules (commonly classified under the NCM code 9602.00.10) originated from Mexico and USA. The duties range from US$ 0,12 up to US$ 2,13 for 1000 capsules.<\/p>\n
<\/p>\n
Antidumping duty applied to imports of acetic esters from Mexico and the United States<\/strong><\/h3>\n
Through Resolution No. 506, of 08\/16\/2023, GECEX applied anti-dumping duty, for a period of up to 5 years, to Brazilian imports of acetic esters (commonly classified in subitems 2915.31.00 and 2915.39.31 of the Mercosur Common Nomenclature – NCM) originating in Mexico and the United States. The rate applied varies between US$ 110.88 and US$ 647.94 per ton.<\/p>\n
<\/p>\n
Antidumping duty applied to imports of n-butanol from the United States<\/strong><\/h3>\n
Through Resolution No. 507, on 16.08.2023, GECEX applied anti-dumping duty, for a period of up to 5 years, to Brazilian imports of n-butanol (commonly classified in subitem 2905.13.00 of the NCM) originating in the United States. The ad valorem rate is applied to the customs value of the merchandise and the percentages vary between 9,8 and 28,4%.<\/p>\n
<\/p>\n
Other Updates in Commercial Defense<\/strong><\/h3>\n
In recent months, the Foreign Trade Secretariat (SECEX) opened the following proceedings:<\/p>\n
\n
Sunset review of the antidumping duty applied to Brazilian imports of coated paper originated from Germany, Belgium, Finland and Sweden;<\/li>\n
Sunset review of the antidumping duty applied to Brazilian imports of nitrile rubber (NBR) from South Korea and France;<\/li>\n
Antidumping investigation on imports of gloves for non-surgical procedures for healthcare, from Malaysia, Thailand, and China; and<\/li>\n
Evaluation for resuming the antidumping duties applied to imports of polypropylene resin (PP) from the United States of America, which was previously imposed in 2022, but immediately suspended due to reasonable doubts about the likely future evolution of the imports.<\/li>\n<\/ul>\n
<\/p>\n
Denise Junqueira<\/strong>
\ndjunqueira@cascione.com.br<\/p>\n
<\/p>\n
\u00a0<\/strong>Brazilian Competition Case Law, Trade & Trends | October 2023<\/p>\n","protected":false},"excerpt":{"rendered":"
ANTITRUST & COMPETITION Cascione\u2019s team is recognized by the Legal 500 ranking Cascione\u2019s Antitrust team was, once again, recognized and ranked by the Legal 500, one of the most distinguished publications of the legal market, as one of the best law firms in Competition & Antitrust in Brazil. The publication highlighted the team\u2019s \u201cexcellence in […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"single-concorrencial.php","format":"standard","meta":{"footnotes":""},"categories":[40,20,1],"tags":[],"class_list":["post-5586","post","type-post","status-publish","format-standard","hentry","category-brazilian-competition-case-law","category-concorrencial","category-sem-categoria"],"_links":{"self":[{"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/posts\/5586","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/comments?post=5586"}],"version-history":[{"count":7,"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/posts\/5586\/revisions"}],"predecessor-version":[{"id":6197,"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/posts\/5586\/revisions\/6197"}],"wp:attachment":[{"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/media?parent=5586"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/categories?post=5586"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cascione.com.br\/en\/wp-json\/wp\/v2\/tags?post=5586"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}