ACORDOS VS. CONDENAÇÕES EM CONDUTAS UNILATERAIS: UMA ANÁLISE DO PONTO DE VISTA DA EFICIÊNCIA

Abstract

Context: The Organization for Economic Cooperation and Development (OECD) evaluated in 2019 that investigations of unilateral conducts by the Administrative Council for Economic Defense (Cade) are few, last long and are mostly settled through administrative agreements (termos de compromisso de cessação or TCCs). Objective: The objective of the study is to analyze Cade's efficiency in the examination of unilateral conducts, based on the duration of the processes and on the different types of conclusions, that is, if they are resolved through TCCs or administrative decisions that, in general, are judicialized. Method: The research surveyed the cases of abuse of dominant position at Cade between 2012 and 2019 and their outcomes, calculated the average duration of the processes and compared data that emerge from processes that ended in TCCs with those with decisions of Cade, including the ones taken to court. Results: The comparison shows that the average duration of the 76 cases concluded in TCCs in the studied period expended less than half the average duration of the 17 processes with conviction of economic agents by Cade which are usually taken to court. Conclusions: Potentially, administrative agreements, as they require less time, can limit damage to the economic order due to abuse of dominant position, which can be an indicator of efficiency. On the other hand, the analysis points out that the large number of TCCs interrupts the investigations and efforts already undertaken by Cade, further hindering the formation of jurisprudence in these cases that would serve as a constraint for companies, which can be an indicator of inefficiency.