Convicted Industrial Gas Companies go to Court

Last month several Industrial Gas Manufactures and Individuals were convicted by CADE for illegal collusion with a historic fine. Since last week many of them have filed actions before the Federal Court against CADE´s decision and the fines applied. So far, manufacturer Linde Gases has gotten an injunction from the Federal Court in Brasília to stop CADE from executing the fine. This injunction is being allowed only if the Company deposits a warranty in the same amount of the fine imposed by CADE.


ADI against SDE's power to inspect

The National Confederation of the Industries (CNI) has filed an ADI (Direct Action of Inconstitutionality) before the Supreme Court (STF) this week questioning the articles 26-A and 35 of Law 8884 (Brazil's antitrust act). CNI believes that the power to inspect officies and facilities without a judicial order given by article 35 is inconstitucional. They also consider against the constitution the fact that article 26-A imposes a fine to companies and individuals that deny access to their offices and facilities. That would be afecting the garantee of non auto-incrimination.
The inspection does not demand a judicial order but has to be warned 24 hours before it begins (while the judicial dawnraid is unexpected).
The reporting Justice is Ayres Brito.


CADE approves agreement between TNL and Phorm

Brazil´s Antitrust Authority has this week approved the partnership agreement celebrated between TNL and Phorm. The operation involved internet marketing where the publicity will be directed to the customers according to the websites that are visited. The Reporting Counselor, Fernando Furlan, did not see any harm to competition concluding there were low barriers to entry of new competitors and allowed the transaction. There was a discussion involving internet privacy, but Furlan understood that the discussion was not under CADE´s jurisdiction. The decision will be sent to the Internet Government Committee, to the Telecommunications Agency and to the Department of Consumers Protection of the Ministry of Justice due to the data protection concerns.


CADE blocks acquisition of concrete assets from Cimentos Tupi by Polimix

The Brazilian competition tribunal (CADE) has rejected clearance to the acquisition of concrete services assets from Cimentos Tupy by Polimix Concreto.

According to the Reporting Commissioner Fernando Furlan, the transaction would result in high market shares in a series of municipalities and harm competition, while there would be no compensatory efficiencies to allow approval of the deal.

The remaining Commissioners unanimously agreed with Furlan, highlighting the correction of his approach regarding the calculation of market shares - summing up the shares of all companies on which the controling group of Polimix has (even minority) equity interest,

According to CADE's decision the acquired assets shall be returned to Tupi within 30 days from the publication on the Official Journal.