Antitruste: sanção de desinvestimentos em ativos: um estudo de caso no processo administrativo no 08012.11142/2006-79

• Ano de defesa: 2016
• Autor(a) principal: Dias, Rodrigo Pereira
• Orientador(a): Pereira Neto, Caio Mário da Silva
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Palavras-chave em Português: Desinvestimento; Venda; Remédios; Não pecuniárias
• Link de acesso: http://hdl.handle.net/10438/16448

This paper is a case study, and the main objective is to evaluate the sanction of asset divestments, that is, the company split penalty, the transfer of corporate control and/or sale of assets, as provided in Article 38, Paragraph V of Law No. 12.529/11 (Antitrust Law). Therefore, we expose the resolution given by the Court of the Administrative Council for Economic Defense (Cade, in Portuguese) in the Administrative Process No. 08012.011142/2006-79, called Cartel of Cement and Concrete. This resolution condemned the cement manufacturers and concrete service providers to divest their own assets resulting from acquisition or organic growth. It is important to mention that this decision has undergone significant change over the trial due to the modification of understanding of Cade counselors. In a second step, the research seeks to provide a broad overview of the types of remedies or sanctions (existing and applicable) to cases where it is determined the divestment measure, as well as discuss the pros and cons of each type of measure from the selection of some international and national cases, chosen from cases widely treated by the doctrine, and also cited in the judgment of the Administrative Proceeding No. 08012.011142 / 2006-79 (Cartel Cement). Then, we address the issue of specific divestment occurred in Administrative Process No. 08012.011142/2006-79, showing that the basis used to determine the divestments lack of concrete parameters for their application. At the end of the study of the divestment, outlines up a proposal for legal remedy. In the end, it is concluded that the imposition of divestments measures as a penalty for participating in cartels is not an easy choice, nor their use is peaceful, and we must take into account some relevant aspects in order to guarantee that these measures will be used legitimately, ensuring their efficacy.