Case involves five companies, eight individuals and a relevant discussion about fines for all cases of anticompetitive conduct
CADE’s building in Brasília — Foto: Jefferson Rudy/Agência Senado
Antitrust regulator CADE has acknowledged the existence of a cartel in bids held for the installation of cafés in airports in São Paulo (Congonhas), Florianópolis, Recife, Campo Grande, Curitiba and Maceió. The case involves five companies, eight individuals, and a relevant discussion about fines for all cases of anticompetitive conduct.
The judgment has an important aspect for competition law: the calculation of fines imposed as a penalty on businesspeople and employees involved in cartels and other competition violations. In this case, the amount of the individual penalty for two individuals goes from R$139,000 to R$28,000, depending on the criteria used.
The bids were conducted by state-owned airport operator Infraero. The complaint of alleged anticompetitive conduct was filed with CADE by the company. According to the investigation conducted by the state-owned company, five companies and eight individuals have acted in a coordinated manner to defraud seven public tenders held by Infraero.
The companies involved are: Alimentare Serviços de Restaurante e Lanchonete, Boa Viagem Cafeteria, Confraria André, Delícias da Vovó and Ventana Manutenção e Serviços.
The rapporteur, CADE member Sérgio Costa Ravagnani, voted for the dismissal of the process in relation to one defendant who died, and for the condemnation of the others – cafés and individuals. He was defeated only on the way to calculating the penalties.
Law 12,529 of 2011 sets penalties for cases of anticompetitive conduct. Companies are fined between 0.1% and 20% of the value of gross revenues in the last fiscal year before the administrative proceeding was started. And it must not be less than the advantage gained when it is possible to estimate.
As for individuals, managers can be fined between 1% and 20% of the value defined to the company. Others, such as employees and associations, may have to pay amounts ranging from R$50,000 to R$2 billion.
CADE member Gustavo Augusto’s vote prevailed in the judgment on the fines. In his view, the economic capacity must be considered in the calculation, even if not as a determinant.
*By Beatriz Olivon — Brasília
Source: Valoar International