Recent CADE Decisions Reinforce Guidelines for Sector-Specific Conduct and Market Structures

Soy Moratorium: CADE Closes the Case and Fines Aprosoja-MT for a Delaying Appeal

On October 7, 2026, CADE definitively closed its investigation into the Soy Moratorium. At that time, the Court unanimously rejected the motion for clarification filed by the Association of Soybean and Corn Producers of the State of Mato Grosso (“Aprosoja-MT”) against the decision that had dismissed the administrative proceeding investigating alleged anticompetitive conduct related to the Soy Moratorium. Finding that the appeal was manifestly intended to delay proceedings, the Tribunal also imposed a fine of BRL 250,000 on the association and declared the decision immediately final and unappealable, definitively closing the case at CADE.

Created in 2006, the Soy Moratorium is a sector-wide agreement under which trading companies and manufacturers committed not to purchase soy produced in areas of the Amazon biome that were deforested after July 2008. Aprosoja-MT, CNA, and committees of the National Congress brought the issue before CADE. Their argument was that the agreement would function as a collective boycott by buyers, imposing environmental requirements on producers that went beyond those set forth in the Forest Code (Código Florestal).

In August 2025, the General Superintendence initiated administrative proceedings against Abiove, ANEC, and approximately 30 trading companies and agribusinesses participating in the agreement. It also ordered the preventive suspension of the Moratorium, under penalty of a daily fine of R$ 250,000. Abiove and the other entities under investigation appealed to the CADE Tribunal. A few days later, the Federal Court suspended the preventive measure.

At the same time, the matter was also under review by the Brazilian Supreme Court (“STF”) in two Direct Actions of Unconstitutionality (ADIs 7,774 and 7,775), which challenged laws in Mato Grosso and Rondônia that restricted tax benefits to companies participating in environmental agreements such as the Moratorium. In November 2025, Supreme Court Justice Flávio Dino, the reporting justice for the ADIs, suspended all judicial and administrative proceedings on the matter, including CADE?s case. In August 2026, the STF Plenary recognized, by a majority vote, the constitutionality of the Moratorium and ordered the dismissal of all cases based on its alleged illegality.

In compliance with STF’s decision, in September 2026 the CADE Tribunal dismissed the administrative proceeding (which had been suspended) without ruling on the merits. Aprosoja-MT filed a motion for clarification, arguing that CADE could not dismiss the case before the publication of the STF’s rulings; that there were independent conducts related to the Moratorium capable of justifying the continuation of the antitrust investigation; and that CADE should preserve and disclose the evidence gathered. The Court rejected all three arguments, stating that the STF’s decision had already taken effect upon publication of the judgment minutes and was expressly directed at CADE; that the attempt to split the case into “independent conducts” would amount to merely recharacterizing the same underlying subject matter; and that preserving the body of evidence would be incompatible with the complete dismissal ordered by the Supreme Court.

In that same decision, CADE imposed a BRL 250,000 fine on Aprosoja-MT, finding that its motions for clarification were dilatory. The fine was based on the entity’s repeated filing of similar motions in 14 voluntary appeals arising from the same proceeding, all of which had been rejected. On October 14, 2026, the Federal Court issued a preliminary injunction suspending the collection of the fine. According to the federal court, the BRL 250,000 fine did not comply with the Brazilian Code of Civil Procedure, which caps such fines at 2% of the amount in controversy. The court’s decision therefore raises questions about the legal basis and proportionality of the fine imposed by CADE.

The preliminary injunction does not alter the dismissal of the administrative proceeding, which remains closed. Although CADE did not reach a final decision on the merits regarding the compatibility of the Soy Moratorium with competition law, the case made an important contribution to the Brazilian debate on the intersection between competition and sustainability – an issue that engages antitrust authorities worldwide. It reinforced the need to assess the competitive effects of environmental agreements among competitors in concrete terms, without presuming their illegality, and brought to the forefront CADE’s role in establishing parameters that reconcile the protection of competition with the promotion of legitimate sustainability initiatives.

American/Azul: Minority Stake Among Competitors Approved with ACC Focused on Governance and Information Flow

On October 7, 2026, the CADE Tribunal unanimously approved American Airlines’ acquisition of approximately 8% of Azul’s equity, subject to a Merger Control Agreement (“ACC”) proposed by the applicants themselves. The $100 million investment, made through the exercise of subscription warrants issued during Azul’s Chapter 11 restructuring in the U.S., secures American one of the seven seats on the Board of Directors and one of the five seats on the Strategic Committee. The case marks an evolution in CADE’s approach to minority investments and cross-shareholdings among competitors, transforming governance and information-sharing safeguards – which, in previous precedents, had been treated in a less structured manner – into formally enforceable obligations.

In our August newsletter (link), we noted that CADE’s General Superintendence (“GS”) had approved the transaction without restrictions, but Abra Group, GOL’s parent company, filed an appeal with the CADE Tribunal. The central issue was the combination of two competitors’ – American Airlines’ and United Airlines’ – stakes in Azul’s capital and their participation in its governance. Of particular concern was the risk of interlocking directorates: with approval, American and United would each have representatives simultaneously serving on Azul’s corporate and governance structures. United’s stake, of approximately 8.6%, had already been approved by CADE in March 2026, granting it the right to appoint representatives to governance bodies. Now, two competitors are represented on the board of a third company that competes with them for Brazil-U.S. routes – an arrangement that has raised questions about coordination and the exchange of sensitive information.

Beyond its effects on the airline industry, the case stands out for establishing stricter guidelines for minority stakes among competitors. The debate not only considers the investor’s corporate rights but also addresses how multiple connections between competitors can reduce competitive pressure and make market behavior more predictable, creating room for coordination.

In her opinion, Reporting Commissioner Camila Cabral acknowledged that the minority stake did not confer control or individual veto rights, but concluded that the combination of the investment, American’s representation on Azul’s board, and United’s concurrent presence in Azul’s governance structure warranted closer scrutiny. Concerns regarding the potential effects on the parties’ competitive incentives, access to competitively sensitive and strategic information, the ability to influence business decisions through governance rights, and reduced uncertainty about competitors’ behavior justified conditioning clearance on commitments governing the exercise of those rights.

The ACC established, among other measures, restrictions on American’s access to competitively sensitive information and on its participation in strategic discussions regarding routes between Brazil and the U.S. It also provides for monitoring mechanisms to be used by CADE and obligations to notify the agency of future corporate acquisitions and changes in governance rights. In Commissioner Cabral’s view, these commitments were sufficient to preserve the companies’ competitive independence and address the risks posed by the structure of cross-shareholdings among competitors.

Governance safeguards adopted solely through private arrangements between the parties (such as in bylaws, internal policies, or contractual commitments) would be difficult for CADE to monitor and enforce. The ACC was therefore designed to formalize these commitments before CADE and ensure their compliance could be effectively monitored and verified. The table below summarizes the main commitments:

Topic and Commitments

Agendas

• Identify in advance the agendas of the Board of Directors and the Strategic Committee that involve sensitive information or prices, production, capacity, and strategy in the markets where the companies compete.

Sensitive Matters

• Prevent the American representative from accessing sensitive information, participating in discussions, and voting on these matters.

Internal Policies and Safeguards

• Maintain antitrust guidelines that prevent the American representative from participating in sensitive matters and limit the sharing of information to aggregated data.
• Provide information from Azul to American only in aggregate form, without disclosing specific strategies in markets where they compete.

Records

• For five years, retain agendas, meeting notices, minutes, complete materials and versions without sensitive information, distribution lists, acknowledgment forms, and other records that demonstrate the identification of sensitive topics and compliance with information and governance restrictions.

Duty to Report to CADE

• Notify CADE in advance of the acquisition of 5% or more of the voting or total capital of an airline operating scheduled flights between Brazil and the U.S., or any additional increase of 5% or more, even if the revenue criteria are not met.
• Notify the GS, within 10 business days of any events that, without the acquisition of new shares, result in a cumulative increase of 5% or more in the stake in Azul’s total or voting capital, to assess the need for further notification.
• Notify the GS of any corporate or contractual changes that expand American?s voting rights or influence.
• Report the composition and replacement of its representatives within 10 business days of their appointment, with a written acknowledgment.

The ACC also provides a useful indication of the governance safeguards CADE should expect or require in future cases involving governance links between competing companies, including overlapping board representation. Commissioner Cabral also suggested that minority stakes and their potential coordinated effects be explored in greater depth as part of the review of CADE’s Horizontal Merger Guidelines, which sets forth the methodological guidelines for analyzing mergers among competitors.

Want to understand how these developments could impact your business? Our Competition & Antitrust team is ready to help you navigate them.