Publications

ANP issues rules on the assessment of excessive fuel pricing

On July 2, 2026, the ANP published Resolution No. 1,004/2026, applicable to fuel distributors, and Resolution No. 1,005/2026, applicable to retailers of liquid fuels and LPG, establishing the criteria for determining the administrative offense of “excessive price increases.” The Resolutions conclude a regulatory process initiated by Provisional Measures No. 1,340/2026 and No. 1,349/2026, which, in addition to introducing fuel subsidies and tax relief measures, established severe administrative sanctions for price increases deemed excessive.

The new framework raises an important legal and regulatory question. Using gross margin as the primary trigger for administrative sanctions may amount to an indirect form of price control in a market that has operated under a free-pricing regime since 2002 (Law No. 9,478/1997), raising constitutional concerns in light of the principles of free enterprise and free competition enshrined in Articles 1(IV) and 170 of the Brazilian Constitution. These concerns are reinforced by the severity of the applicable penalties, which range from BRL 50,000 to BRL 500 million and may extend jointly to shareholders holding at least 20% of the company’s equity, directors and managing partners. It is also noteworthy that the objective criteria defining the offense—the core of its legal characterization—were delegated to ANP regulations rather than established by statute, reviving the debate over the constitutional limits of regulatory delegation in the context of administrative sanctions.

The draft Resolutions were discussed during a public consultation process. Fuel distributors and industry associations argued that gross margin, as the central assessment criterion, fails to account for logistics costs, exchange-rate fluctuations, RenovaBio compliance costs and supply risks, potentially discouraging fuel supply in remote markets. These concerns are well-founded, as distinguishing legitimate price increases from abusive ones is inherently complex, calling into question the reliability of gross margin as a standalone benchmark.

The final version of the Resolutions addressed some of these concerns. Among other changes, it increased the indicative trigger for investigation from a 10% to a 70% increase in gross margin, extended the deadline for presenting justifications from 10 to 30 days, revised the legal characterization of the offense and streamlined several procedural aspects. At the same time, however, it introduced a separate administrative offense for the failure to provide information to the ANP within the prescribed deadline, increasing the importance of robust internal documentation and compliance procedures.

Nevertheless, several concerns remain. The methodology continues to rely primarily on gross margin without incorporating additional factors relevant to assessing the actual profitability of fuel sales, leaving uncertainty as to how the calculation should be performed in practice. Likewise, the absence of a transition period and the treatment of inspections and enforcement actions initiated before the objective criteria were formally established remain unresolved. The possibility of retroactive application is particularly sensitive from the standpoint of legal certainty and the principle of legality governing administrative sanctions and will likely be tested in ongoing administrative proceedings and, ultimately, before the courts.

Resolutions No. 1,004/2026 and No. 1,005/2026 therefore represent an important milestone in the consolidation of the ANP’s new price-monitoring and enforcement framework. At the same time, they reignite the broader debate over the limits of regulatory intervention in competitive markets and the distinction between regulatory mechanisms aimed at monitoring prices and competition law enforcement, which has traditionally focused on protecting the competitive process rather than directly regulating price formation. Whether a sanctioning regime that places significant pressure on pricing freedom while relying substantially on subordinate legislation to define the elements of the offense will withstand administrative and judicial scrutiny remains to be seen—particularly given that the applicable fines may reach hundreds of millions of reais.

Our Regulatory and Competition Law team is closely monitoring these developments and remains available to discuss the implications of the new ANP Resolutions and their potential impact on market participants.