In an order signed on the 10th of September, the General Superintendence of the Administrative Council for Economic Defense recommended to the local authority court the condemnation of Air BP Brasil, BR Distribuidora, Raízen Combustíveis and the International Airport Concessionaire Guarulhos (GRU Airport) for anti-competitive practice in the aviation kerosene distribution market.
The investigation of the case began in February 2014, based on a representation made by Gran Petro. In its complaint, the company alleged, among other aspects, that the distributors and the administrator were preventing them from entering the fuel distribution pool at Guarulhos airport, in São Paulo.
According to the investigation, GRU Airport, Air BP Brasil, BR Distribuidora and Raízen Combustíveis established an anti-competitive content clause in a contract entered into in 2013 for the operation of aircraft supply infrastructure. The provision foresaw that the entry of another company in the base shared by them would depend on the consent of the participants in the pool. In CADE's view, this forecast constitutes an artificial barrier to the entry of other competing distributors at that airport.
The opinion points out that the difficulties reported by Gran Petro in its entry into this market would be demonstrated, at first, in the company's negotiation directly with GRU Airport and, later, with the pool's distributors.
According to CADE's analysis, the potentially damaging effect of the clause is the high risk of an entrant "not achieving a predictable negotiation, with pre-defined criteria and steps and deadlines with its future competitors for access to the infrastructure that allows competing on an equal footing with incumbents, as provided for in the current regulatory arrangement".
The lawsuit also investigated alleged anti-competitive conduct practised by Raízen to the disadvantage of Gran Petro in the aviation kerosene distribution market outside airports, due to a possible refusal to contract the assignment of space on a primary distribution basis around the Paulínia Refinery, in Sao Paulo. In this case, however, CADE considered that there was not enough evidence of a breach of the economic order, pointing out that Gran Petro had other options available for obtaining fuel besides Raízen's base.
The case now goes to CADE's Court, responsible for the final decision on the matter. If convicted, the distributors and GRU Airpot may pay fines of up to 20% of their gross sales, in addition to being subject to other penalties provided for in Law No. 12,529 / 2011.