New Decision on the Exchange of Sensitive Information between Competitors: More of the Same?

However, ambiguity remains as to the criteria the authority will apply going forward. This reinforces the need for a careful case-by-case analysis, considering factors such as the frequency of interaction, the nature of the information exchanged, and the competitive context. Special attention should be paid to the formal articulation of the exchange’s purpose and how it is executed in practice.

Context: CADE has been grappling with the complex issue of information sharing between competitors, especially when it occurs independently, outside the context of a cartel. The Tribunal’s more recent stance rightly focuses on whether such exchanges reduce uncertainty around competitors’ behavior (as seen in this decision related to a fuel resale cartel in Brasília, Case No. 08012.008859/2009-86).

Still, this apparent shift does not resolve key questions, especially when comparing the Board’s approach with that of CADE’s investigative arm, the General Superintendence, in more recent cases involving HR groups (Cases 08700.001198/2024-49 and 08700.000992/2024-75), as well as older investigations in sectors like auto parts (08700.006386/2016-53), insurance brokerage (08700.000171/2019-71), and MedTech HR services (08700.004548/2019-6).

More details: The Tribunal evaluated the exchange of purchase prices and sales volume information between fuel retail chains, separate from the cartel allegations. It ultimately dismissed the price-exchange claim for lack of evidence, while upholding liability for the cartel conduct.

Importantly, the dismissal was not a signal of tolerance. On the contrary, the Tribunal emphasized that sensitive information exchanges can constitute serious antitrust violations, depending on the context. This position also indirectly supports the Superintendence’s recent investigations—particularly in the HR sector.

The Tribunal reinforced the view that no blanket presumptions should apply, and each case should be evaluated on its own merits. Relevant factors include market structure, whether the information is sensitive or publicly available, the purpose of the exchange, and whether it has the potential to reduce uncertainty—echoing recent European case law. The key question becomes: Does the shared information make a competitor’s next move more predictable?

The Tribunal also clarified that such exchanges may constitute restrictions “by object” (i.e., inherently anticompetitive) if they are likely to eliminate uncertainty regarding competitors’ behavior.

Even in transparent markets, danger persists. The Tribunal cautioned that even in already transparent markets, further exchanges of detailed or frequent information can harm competition – particularly when they involve data more granular than what is publicly available or when they serve as implicit signals.

In the fuel sector, for instance, sharing purchase price information was deemed likely to artificially increase transparency, revealing competitors’ profit margins and undermining competition. In markets where pricing behavior is already predictable, any additional transparency may exacerbate the risk of coordination.

Depending on the circumstances, including the availability of public or aggregated data, the Board’s approach may offer support for compliant information-sharing practices. At the same time, it avoids sweeping presumptions that would chill legitimate exchanges.

However, legal treatment of this issue varies internationally, and economic theory remains divided on the competitive impact of such conduct. Given this uncertainty, companies and associations must proceed with caution. Thorough risk assessments and strong governance frameworks are essential to mitigate exposure and ensure legal certainty.

Our team is available to discuss how these developments may affect your operations and assist in navigating the associated risks.