Abstract
The Brazilian competition legal framework does not provide a different set of rules for each specific market or designate different institutions to enforce competition regulations. Both traditional and innovative markets—the “old” and the “new” economies—are subject to the same set of rules. Moreover, there are no competition law guidelines particularly relevant to the new economy or pertaining specifically to online sales platforms in Brazil.
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Notes
- 1.
Federal Law (Lei Federal) No. 12,529 of 30 November 2011.
- 2.
Those are the examples of conducts indicated in Article 36 of the Antitrust Act: “I – to agree, join, manipulate or adjust with competitors, in any way: a) the prices of goods or services individually offered; b) the production or sale of a restricted or limited amount of goods or the provision of a limited or restricted number, volume or frequency of services; c) the division of parts or segments of a potential or current market of goods or services by means of, among others, the distribution of customers, suppliers, regions or time periods; d) prices, conditions, privileges or refusal to participate in public bidding; II – to promote, obtain or influence the adoption of uniform or agreed business practices among competitors; III – to limit or prevent the access of new companies to the market; IV – to create difficulties for the establishment, operation or development of a competitor company or supplier, acquirer or financier of goods or services; V – to prevent the access of competitors to sources of input, raw material, equipment or technology, and distribution channels; VI – to require or grant exclusivity for the dissemination of advertisement in mass media; VII – to use deceitful means to cause oscillation of the prices for third parties; VIII – to regulate markets of goods or services by establishing agreements to limit or control the research and technological development, the production of goods or services, or to impair investments for the production of goods or services or their distribution; IX – to impose, on the trade of goods or services, to distributors, retailers and representatives, resale prices, discounts, payment terms, minimum or maximum quantities, profit margin or any other market conditions related to their business with third parties; X – to discriminate against purchasers or suppliers of goods or services by establishing price differentials or operating conditions for the sale or provision of services; XI – to refuse the sale of goods or provision of services for payment terms within normal business practice and custom; XII – to hinder or disrupt the continuity or development of business relationships of undetermined term, because the other party refuses to abide by unjustifiable or anticompetitive terms and conditions; XIII – to destroy, render useless or monopolize the raw materials, intermediate or finished products, as well as to destroy, disable or impair the operation of equipment to produce, distribute or transport them; XIV – to monopolize or prevent the exploitation of industrial or intellectual property rights or technology; XV – to sell goods or services unreasonably below the cost price; XVI – to retain goods for production or consumption, except to ensure recovery of production costs; XVII – to partially or totally cease the activities of the company without proven just cause; XVIII – to condition the sale of goods on the acquisition or use of another good or service, or to condition the provision of a service on the acquisition or use of another good or service, and XIX – to abusively exercise or exploit intellectual or industrial property rights, technology or trademark.”
- 3.
Preparatory Proceeding. The Preparatory Proceeding precedes an Administrative Investigation and an Administrative Proceeding. The purpose of the Preparatory Proceeding, which must be performed within a maximum period of 30 days, is just to verify if certain facts potentially may be considered unlawful and require an investigation (Article 66 of the Antitrust Act).
- 4.
The concept of “field of the business activity” is not identical to the notion of relevant market. At the time the Brazilian Antitrust Act was published, the legislator deliberately substituted the term “relevant market” by “field of the business activity” as a basis for calculating penalties. The concept of field of the business activity, however, was entirely new, generating uncertainties as to its scope. On May 29, 2012, CADE issued Resolution n. 3 that lists 144 fields of business activities that will serve as the basis for the calculation of the penalty.
- 5.
According to Article 5, item XXXV of the Federal Constitution, no law is able to exclude any harm or threat to someone’s right from the consideration of the Brazilian courts.
- 6.
According to Article 186 of the Civil Code.
- 7.
CADE is not required to follow this order of analysis. In addition, as it has made clear in the Guide to Analysis of Horizontal Concentration Acts published in 2016, CADE may, in certain cases, adopt alternative ways for antitrust analysis, such as counterfactual analysis and simulations of the transactions’ effects that may depend or not on the prior definition of the relevant market.
- 8.
Administrative Proceeding. The Administrative Proceeding is initiated when CADE’s General Superintendence consider that there are indictments of an unlawful conduct. It is an adversarial proceeding, aiming to guarantee to the accused party wide defense in regard to the conclusion of the investigation (Article 69 of the Antitrust Act).
- 9.
Processo Administrativo No. 08012.006253/1999-46.
- 10.
Processo Administrativo No. 08012.003921/00-13.
- 11.
This was also stated in Proceeding No. 08012.007893/2005-18.
- 12.
Proceeding No. 08012.003921/2000-13 and No. 08012.010855/2008-87.
- 13.
Materials, repairs and operations, which are not directly related to the company’s main activity.
- 14.
Proceeding No. 08012.003386/2001-73.
- 15.
“Guia de Analise de Atos de Concentração Horizointal” approved and published by the Plenary of CADE on July 2016.
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Cristofaro, P.P.S., de Pinho, L.S. (2018). Brazil. In: Kilpatrick, B., Kobel, P., Këllezi, P. (eds) Antitrust Analysis of Online Sales Platforms & Copyright Limitations and Exceptions. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-71419-6_5
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