Antitrust law and Covid-19: Precautions in a Time of Crisis

By Paulo Casagrande and Mariana Rosa, partner and associate of Antitrust group of Trench Rossi Watanabe , respectively

The Brazilian authorities have started to take containment measures amid the rise of Covid-19 cases locally and the continued worsening of the situation in the country and abroad. Accordingly, the Administrative Council for Economic Defense (CADE – the Brazilian antitrust authority) announced that most of its staff will be working remotely and that face-to-face meetings may be replaced by videoconferences or calls. Yet up to now, on-site judgment sessions are still regularly happening.

Despite such measures, the analysis activities and procedural deadlines are keeping to their regular schedule. Thus, transactions that occur during this period and meet the legal threshold for mandatory filing must follow the regular filing procedure before the antitrust authority. Conduct investigations will, in principle, continue as normal.

Furthermore, considering the worldwide crisis, antitrust authorities around the world are stepping up their efforts in detecting and analyzing certain kinds of conduct. In this sense, companies must remain independent and be extremely cautious to not act against the Competition Law in case they aim to prepare coordinated actions that protect them from the risks caused by Covid-19. In particular, they should keep an eye on these key points:

• The Competition Law is still applicable even in the face of an economic crisis.

• Communication and/or collaboration with competitors should be carefully evaluated, especially in situations involving the exchange of sensitive information and coordination of commercial strategies.

• Actions taken in line with demands from the Executive Power or in society’s interest are not free from anticompetitive concerns and should be carefully analyzed.

• Raising prices, reducing offers, changing commercial policies and restricting supply might be considered anticompetitive, if not justified. CADE will be vigilant in detecting any potential abusive conduct.

In view of the global crisis, CADE will closely monitor the market and businesses in order to detect potentially abusive and damaging conduct.

Remember that despite the Covid-19 crisis, compliance policies and the Competition Law should still continue to be strictly followed so that of any anticompetitive practice can be avoided. In this context, we recommend that companies look for legal advice in case of any doubt in the implementation of measures that might be considered abusive or anti-competitive.