Post by account_disabled on Mar 13, 2024 8:31:50 GMT
Despite being an old entity (1963), the Administrative Council for the Defense of Competition (Cade) remained in low relevant activity for a long time. With its transformation into an autarchy, by Law 8,884/1993, the council became a judicial authority with clarity on which conducts should be classified as a violation of the economic order – with provisions expressed in the “new legislation”.
After the entry into force of Law 12,529/11, Cade has been consolidating itself as one of the main figures in economic and competition regulation in Latin America, with a substantial role in validating large operations carried out in Brazilian territory.
In the criminal field, it is common to B2B Lead discuss the nature of decisions made within the regulatory entity, mainly regarding the competence of article 9, II, of the Competition Defense Law. There are those who call into question the effects of Cade's judgments and their impact on conduct stipulated by law as a crime, prompting judicial inquiries into the merits of the judgments.
With a little depth, however, the best understanding of this decision-making effect is captured through the prism of the analytical (tripartite) concept of crime, which is every typical, anti-legal and culpable fact. The removal of any of the elements is sufficient to disqualify the conduct, whether for an atypical fact, a lawful fact or an unjust criminal act, and the problems encountered by the council are sometimes related to the criminal hypotheses of the law, with express formal typicality.
Specifically, regarding fuel resale contracts, there is a history of inquiries before the regulatory authority. With the end of price fixing, resellers linked to a certain brand verified that the commercial practice of selling fuels with discrimination of values is criminal conduct, provided for in article 36, §3º, X, of Law 12,529/2011.
The argument is based on the fact that station “X” would be purchasing from the distributor at a lower price than station “Y”, even if the distance between the projects is small or practically non-existent.
There is no doubt that the conduct perfectly conforms to the legal precept for the defense of competition (article 36) as a violation of the economic order, as it involves discrimination in the setting of different prices for the stations that pass on the fuel to the final consumer. Therefore, the first step towards implementing the criminal act under discussion is satisfied: there is conduct (differentiated sales), formal typicality, due to compliance with the norm, and material, considering the commercial impact and that the practice involves the entire market in the sector – not extending There is a discussion about nexus, as the type of crime does not require the production of a result.
However, in the use of its powers, the autonomous entity understands that there is no offense to the economic order in the commercial practices of the distributors, since they set different prices based on the distinction[ 1 ] of their contracts.