guia prático do cade - Conselho Administrativo de Defesa Econômica

(iii) the value charged corresponds to the cost of physical and administrativeoperations necessary for the delivery of containers not covered by the box rate.In summary, port terminal operators alleged that charges for THC2 were a legitimatecompetitive conduct, resulting from the natural dynamics of the marketand even if the non-integrated terminals were excluded, this would not be due toan anticompetitive conduct but to a new market configuration that would be thatof vertically integrated companies.CADE concluded that none of these reasons was strong enough to justify thepractice adopted because none of the studies, reports or simulations was able toprove that the Defendant’s claims were justifiable, among other reasons.The case was understood as a practice to raise rival companies’ costs by meansof vertical integration of port terminals. FCCR (Fees Charged for Container Release)has the effect of creating a limit inferior to that of prices practiced by theCustoms Facilities, which are not integrated vertically thus limiting competitionin the market. Without maintaining proportion with the effective costs of containermovements, the FCCR raises the costs of all the industries that import rawmaterials, reducing the consumers’ welfare and harming competition in Brazilianindustry.DecisionThus, on April 27, 2005, CADE’s Board condemned the Represented for violationof the economic order, and established: (i) the immediate cessation of chargingthe release of containers from customs facilities; (ii) the payment of a fine of1% (one percent) of their gross sales in the year before the process was filed andin the case of Usiminas, which explores countless activities not related to the portactivity, the fine will be incurred on gross sales relating only to the port activities atthe terminal in question; (iii) the publication of the contents of the decision in halfa page of a newspaper with large national circulation for two consecutive days intwo consecutive weeks; in addition to other determinations.It was further ruled that a copy of the decision should be submitted to theAgência Nacional de Transportes Aquaviários – ANTAQ (National Water TransportAgency), to the Secretariat for Economic Law within the Ministry of Justice– SDE/MJ and the Secretariat for Economic Monitoring of the Ministry of Finance– SEAE/MF.178