Even before concluding an investigation, CADE may, in the exercise of its antitrust enforcement powers, impose “interim measures” on companies on a preliminary basis, with the aim of preventing harm to the market. Such measures generally take the form of affirmative or prohibitory obligations, and noncompliance may subject the party to fines or even more severe statutory sanctions, such as intervention in the company. However, there is room within the judiciary to more thoroughly examine the merits and rationale behind CADE’s decisions to impose such interim measures.
Given that CADE investigations typically take years to conclude, the imposition of interim measures can be essential to prevent alleged irreversible damages. For instance, CADE may, at an early stage of an administrative proceeding, as it has done in certain cases, order companies to cease imposing exclusivity clauses on their resellers or business partners. For economic agents harmed by the conduct under investigation, interim measures represent a means of securing the practical benefits that CADE’s intervention may ultimately provide.
Nonetheless, CADE tends to be conservative in issuing interim measures. On average, only about three such measures are issued per year. Exceptionally, this year has already seen four, all involving the conduct of trade associations or class entities in coordinating the market behavior of their members. These are scenarios in which CADE has a well-established body of precedent recognizing the potentially harmful nature of the conduct, suggesting a tendency toward swift action in cases involving practices previously condemned by the authority.
There are also cases involving complex and unprecedented issues. By way of illustration, we refer to two cases that received extensive media coverage. The recent interim measure issued against Apple in 2024 concerning certain practices in the App Store, particularly the requirement to use Apple’s payment system and the imposition of fees. This measure followed nearly two years of investigation by the authority.
The measure significantly impacted Apple’s business model and was challenged in court through a writ of mandamus, resulting in its temporary suspension by judicial order. Although Apple initially obtained a favorable ruling, the effects of that decision were stayed by the appellate judge in CADE’s appeal before the Federal Regional Court of the First Region (TRF1). Subsequently, earlier this year, CADE’s Tribunal upheld the interim measure—originally imposed by the agency’s General Superintendence—while extending the deadline for compliance in line with the TRF1’s decision.
Also in 2024, the General Superintendence imposed an interim measure in another unprecedented case, which likewise led to judicial proceedings. The matter was brought before the authority by Eldorado, in the context of a corporate dispute between its shareholders, Paper Excellence and J&F. The General Superintendence found that the shareholder conflict raised antitrust concerns and suspended Paper Excellence’s political rights. Paper Excellence responded by filing a writ of mandamus and also appealed administratively to CADE’s Tribunal.
Initially, the federal trial court denied the preliminary injunction, stating that it should not reassess the merits of the General Superintendence’s decision. On appeal, however, the Federal Regional Court of the Third Region disagreed and suspended the interim measure pending CADE Tribunal’s ruling on the administrative appeal. In its decision, CADE’s Tribunal overturned the interim measure and reinstated all political rights, except for veto powers that could hinder the company’s expansion of production capacity.
The judiciary has shown some reluctance to review the merits of CADE’s decisions, focusing more on procedural aspects and the right to due process. A 2019 decision by the Brazilian Supreme Federal Court even referenced a “duty of deference” to CADE’s findings (AgR in RE 1.083.955/DF). However, the scope of judicial review over CADE’s decisions remains unsettled in Brazilian courts.
The two cases discussed above suggest that it is possible to engage in broader judicial scrutiny of the arguments and reasoning employed by CADE in adopting such measures. Factors that support the possibility of review, in this context, include the potentially innovative nature of the measures — i.e., when they do not reflect well-established positions of the authority — and the extent of their immediate impact on the parties involved.
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