Lost in translation? Critically assessing the promises and perils of Brazil's Digital Markets Act proposal in the light of international experiments

Abstract

This paper undertakes a comprehensive analysis of Brazil's initial draft legislation aimed at regulating competition in digital markets, which was submitted on November 10, 2022. The Brazilian proposal seeks to establish an asymmetric regulatory framework inspired by the European Union's Digital Markets Act (DMA) in order to foster competition in digital markets. Although the draft promises have extensive scope, the lack of impact assessments and public consultations in its introduction necessitates careful scrutiny. Our analysis compares the different aspects of PL 2,768 with the DMA, the new Section 19a of the German Competition Law, and the UK's digital markets, Competition and Consumers Bill. This comparison reveals similarities as well as differences that require adjustment. Fundamentally, the last version of the Brazilian proposal lacks well-defined goals, with unclear consequences of the stated principles for regulating platforms. This ambiguity creates uncertainty regarding whether obligations should conform to or go beyond the prevailing prioritization of consumer welfare in Brazil's antitrust policy. In addition, the legislation adopts a regulatory approach that may overlook the complexity of platform power in the context of digital ecosystems. Moreover, the proposal's leaner obligations framework may overlook the opportunity to thoroughly analyze international experiments that could provide valuable insights for Brazil's approach. PL 2,768 aims to update competition policy, but achieving this goal requires a thoughtful reassessment of legislation and open discussion with the public. Adopting evidence-based assessment and drawing on comparative lessons could greatly improve the effectiveness of the proposal.