CADE finds companies guilty of antitrust violation in market of aviation fuel distribution at Guarulhos International Airport

On 9 November 2022, the Administrative Council for Economic Defense (CADE) found the companies Air BP, BR Distribuidora (current Vibra), Raízen, and the concessionaire Concessionária do Aeroporto Internacional de Guarulhos S.A. guilty of antitrust violation in the market of aviation fuel distribution in the Guarulhos airport. The Tribunal determined the payment of approximately BRL 150,000,000.00 in fines.

In 2014, after Gran Petro—a fuel distributor and competitor of the companies investigated—reported the case, the Office of the Superintendent General launched an investigation to examine two alleged antitrust violations. The first practice consists of the alleged refusal by Raízen to yield space in the aviation kerosene (QAV) primary distribution basis in the surroundings of refinery Refinaria de Paulínia (Replan). The second practice consists of the alleged imposition of entry barriers and access difficulties to vital infrastructure in the airport by the concessionaire and the three distributors.

The case was submitted to CADE’s Tribunal for examination and adjudication after the Office of the Superintendent General issued an opinion for dismissal in the first conduct a and conviction in the second.

After Commissioner Luiz Hoffman cast his vote as the rapporteur of the case, Commissioner Luis Braido—who voted in disagreement with the fine calculation of the first violation and for a conviction in the second violation—issued a request to access the records. In the Hearing of 9 November 2022, Commissioner Lenisa Prado, following the vote of the rapporteur of the case, brought for adjudication a request to access the records. Subsequently, after declaring his disagreement with the fine calculation, Commissioner Gustavo Augusto, along with commissioners Victor Fernandes and Sergio Ravagani, voted for the conviction of Air BP, BR and Raízen regarding the second violation.

According to the Tribunal, Air BP, BR, Raízen, and the Concessionária do Aeroporto Internacional de Guarulhos created barriers for the entry of Gran Petro in the pool that operates the basis for aviation fuel distribution in the airport, which is considered vital infrastructure for operation in the area.

Therefore, the Tribunal understood that the companies investigated created entry barriers for the competitor without reasonable grounds to do so, resulting in antitrust violation according to Law no. 12529/2011.

The most senior Commissioner, Sérgio Ravagani, defended the fine calculation indicated in the analysis of Commissioner Luis Braido. He declared that the method is effective and all the adjustments made in the calculation parameters are to ensure proportionality of the penalties and to observe the procurement criteria and market share participation.

According to the vote of Commissioner Luis Braido, a majority of the Tribunal convicted the companies and imposed the following fines, respectively: BR Distribuidora, BRL 62,290,894.61; Raízen, BRL 61,713,350.08; Air BP, BRL 26,758,338.99; GRU Airport, BRL 2,087,534.56. The Tribunal also determined that a notification of the decision is to be sent to the Civil Aviation Agency (Anac) along with a copy of the prevailing vote.

Access Case no. 08700.001831/2014-27 for more information.