Brazilian Competition Research Articles

The Politics and Economics of Brazilian Competition Law

Against the renewed international debate on the relationship between competition law and wider social and economic goals, this paper examines the underpinnings of Brazilian competition law. It describes the evolution of the law against the backdrop of the wider transformations in capitalism, and reveals how legal, political, and economic disputes – both domestically and internationally – have shaped its design and implementation. The paper argues that while the foundation of modern Brazilian competition law can be found in a progressive Constitution and in principles that guide the economic order towards the promotion of substantive justice, competition enforcement and scholarship in Brazil have been gradually decoupled from the promotion of socioeconomic rights. This insulation of Brazilian competition practice from wider socio-political concerns was deeply influenced by the epistemological assumptions and the economic methodology of the Chicago School, that have directed competition – in the US and in other jurisdictions – towards formalist notions of efficiency.

The rule of reason and the fundamentals against more presumption-based illegality legal standards: highlights on CADE’s decisions on digital economy issues

Abstract This article advocates against more presumption-based illegality legal standards. The focus is on the Rule of Reason analysis, which is in line with CADE’s case laws for analysing unilateral conducts, distinguishing between restraints with an anti-competitive effect (or resulting in conduct likely to cause such injury) that are harmful to the consumer, and restraints stimulating competition that are in the consumer’s best interest. In this sense, the article recalls some basic concepts, such as market power, dominant position, concentration indexes, and its interactions, since the recent discussions appear to have forgotten its basics. Moreover, a brief analysis of CADE’s procedures and the Brazilian Competition system, especially the analyses of unilateral conduct cases, is made in order to present a background for the readers. At the end, we report three digital antitrust cases judged by Cade to demonstrate the steps used by the authority in order to reach a decision on the case. In a nutshell, CADE has not shifted the analysis of unilateral conduct from the use of the rule of reason to a more presumption-based illegality approach.

Is iFood Starving the Market? Antitrust Enforcement in the Market for Online Food Delivery in Brazil

This article examines the decisions taken by the Brazilian Competition Authority, the Administrative Council for Economic Defence (CADE) in two antitrust cases related the dominant food delivery platform iFood, one merger review and one investigation into exclusive dealing agreements. Through an in-depth examination of the case documents, this article uncovers the evolution in CADE’s comprehension of the competition dynamics in multi-sided digital markets, while also revealing gaps and inadequacies in the authority’s substantive and procedural antitrust enforcement. Based on the findings, the article draws lessons that can help strengthen the authority’s approach to digital platform cases in the future. Firstly, CADE must adapt its steps of analysis and develop new theories of harms that are better tailored to the characteristics of multi-sided platforms. Secondly, CADE should conduct more rigorous merger reviews that take into account the wider impact of dominant platforms’ business strategies on the ecosystem of players orbiting them. Thirdly, the article highlights the importance of the authority building its capacities and expertise to detect competition problems from an early stage, design effective remedies, and ensure these remedies are enforced effectively. These recommendations underscore the significance of continuously updating the enforcement framework and enhancing the capabilities of the competition authority to keep pace with the rapidly evolving digital economy. digital markets, competition law, antitrust, exclusivity dealing, merger review, theories of harm, online food delivery, Brazil

Public Announcements by Companies, Unions, and Trade Associations: Risks to Infringe the Brazilian Competition Law

Public Announcements by Companies, Unions, and Trade Associations: Risks to Infringe the Brazilian Competition Law

Towards Data Portability and Interoperability Under Brazilian Competition Law: Crafting Appropriate Legal Standards for Abuse of Dominance

Towards Data Portability and Interoperability Under Brazilian Competition Law: Crafting Appropriate Legal Standards for Abuse of Dominance

Single nucleotide polymorphism in Interleukin 1 alpha gene might be involved in the Oral Herpes recurrent episodes in Brazilian Para-Athletes

The main goal of this study was to investigate if there is an association between Oral Herpes (OH) recurrent episodes and Single Nucleotide Polymorphisms (SNPs) in IL1A, IL10, and IL1RN genes in a group of Brazilian Para-athletes. This transversal study was prepared according to the STrengthening the REporting of Genetic Association Studies (STREGA) guidelines. Oral examination and DNA collection for genotyping were performed in a non-probabilistic convenience sampling composed of Brazilian para-athletes who participated in a Brazilian selective competition. Data referring to the general characterization of sample were collected through a self-reported questionnaire. Candidate genes were chosen with the UCSC Genome Browser and SNPs in IL1A gene (rs17561, rs1304037), IL10 gene (rs1800871), and IL1RN gene (rs9005) were selected and investigated in allelic, genotypic, dominant, and recessive models. Hardy-Weinberg equilibrium was evaluated in each SNP. The sample was composed of 273 para-athletes (63 (23.4%) practice swimming, 61 (22.3%) powerlifting and 145 (63.7%) athletics). OH recurrent episodes was related by 47 (17.2%) para-athletes and the presence of T allele in the rs1304037 increased chance of OH. These findings suggest that rs1304037 in IL1A gene is associated with OH recurrent episodes in para-athletes.

An Econometric Analysis of the Brazilian Merger Policy

We study the factors that influence the decisions that are made by the Brazilian competition authority on mergers and compare these factors with the Brazilian merger policy guidelines. Estimates of discrete choice models show that high post-merger market share and adverse entry conditions—both of which are included in the guidelines—significantly increase the likelihood of mergers’ being challenged. Market regulation—a factor that is not included in the guidelines—also influences these decisions. Our analysis indicates that the guidelines do not cover all relevant aspects of the decision-making process and shows evidence of the interaction between merger and regulatory policies.

Antitrust law, Anti-corruption law and lenience agreement

The Brazilian Competition Defense System, built by Law 12,529 / 2011, received, in 2013, an important contribution from the Anti-Corruption Law (Law 12,846). In one of the aspects in common, the laws stipulate the Leniency Program or Agreement, aimed at recognizing the economic infraction and the corruptive business practice, facilitating the investigation of infractions, as well as any co-authors, in exchange for benefits regarding the punitive aspects. This essay intends, at first, to understand the origin and historical evolution of “leniency” in Brazil, differentiating the institutes foreseen in the CADE Law and in the Anticorruption Law. And, in a second step, to outline an analysis of the leniency agreement entered into by Odebrecht due to practices found in the scope of Operation Lava Jato. The investigation has a deductive method, starting from the analysis of legal institutes towards a practical case, rising from bibliographic analysis and the terms of the agreement in question.

Political influence on Brazilian antitrust enforcement

Abstract In 2017, Brazil’s president faced impeachment proposals for allegedly receiving money from a businessman in exchange for influencing a decision of the Conselho Administrativo de Defesa Econômica (Cade), the Brazilian competition authority. But, considering that Cade is an independent agency with a reputation for transparency, how may politicians influence antitrust enforcement? By analysing the responses given to a questionnaire of mine by anonymous former Cade commissioners, as well as other reports related to political influence on the agency and records from Congress, Cade, and other institutions, this article will examine the channels of political influence on Cade. First, I examine channels of democratic control, such as the appointment process. Secondly, by discussing those situations in which politicians approach the agency, I observe that, even in the absence of an explicit promise or threat, contact from politicians bears a special weight for Cade’s officers. I argue that, regardless of conclusive evidence that political contact or pressure has actually impacted Cade’s enforcement, public confidence in the agency might be harmed when there is the appearance that it has done so. Therefore, the appropriateness of increased transparency surrounding meetings between elected politicians and Cade’s officers is a matter for consideration.

Abuse of Dominant Position and Cease-and-Desist Agreements: Risks to Brazilian Competition Policy Arising from the Atypical Case of Petrobras’ Refineries

Abstract This paper aims to analyze how the Brazilian competition authority, Cade, deals with cease-and-desist agreements involving abuse of dominant position. The focus is a recent abuse-of-dominant-position case. Cade and the Brazilian state-owned oil and gas company, Petrobras, negotiated a cease-and-desist agreement establishing as remedy the divestment of eight out of 13 Petrobras’ refineries. The hypothesis is that the case was atypical in the light of Cade’s own case law. The paper assesses the Petrobras’ case and compares it to Cade’s case law (2012-2019) concerning cease-and-desist agreements relating to the abuse of a dominant position. The results of the study confirm the atypicality of the case. It demonstrates that the case causes risks to Brazilian competition policy. The paper is divided as follows: after an introduction, the first section discusses abuse of dominant position in Brazil, especially the cases that concluded with cease-and-desist agreements; the second section describes the case related to Petrobras’ oil refinery assets; the third section verifies whether the case may be considered atypical; the fourth section debates the legal and policy risks arising from the case; the final section contains some concluding remarks.

Poor Sleep Quality's Association With Soccer Injuries: Preliminary Data.

To investigate the relationship between sleep quality and quantity and injuries in elite soccer players and to compare sleep-wake variables and injury characteristics. The current investigation was a prospective cohort study of 23 elite male soccer players competing for 2 teams over 6 mo in the highest-level Brazilian competition. The players' sleep behavior was monitored for 10 d in the preseason using self-reporting sleep diaries and wrist activity monitors to determine sleep duration and quality. Furthermore, injuries were recorded by the respective club's medical teams into a specific database. Details of injuries recorded included the type, location, and severity of each injury. The results were expressed as descriptive statistics, and the significance level was set at 5%. The Mann-Whitney U test was performed to compare the sleep variables between groups. Spearman correlation coefficient and linear-regression analysis were used. The results indicated a moderate negative correlation between sleep efficiency and particular injury characteristics, including absence time, injury severity, and amount of injuries. The linear-regression analysis indicated that 44% of the total variance in the number of injuries can be explained by sleep efficiency, 24% of the total variance in the absence time after injury (days) can be explained by sleep efficiency, and 47% of the total variance in the injury severity can be explained by sleep efficiency. Soccer players who exhibit lower sleep quality or nonrestorative sleep show associations with increased number and severity of musculoskeletal injuries.

Review of Decisions of the Competition Authority in Brazil: Reconciliation of the Judicial Trend with Due Process of Law

The present essay approaches an issue on transparency, due process and procedural fairness in Brazil’s competition law. Rather than extensively describing the Brazilian system, this paper intends to propose a solution to the problem of the Supreme Federal Court (STF) decision to deny the review on merits in the Judiciary of decisions issued by the Administrative Council for Economic Defense (CADE). Such a proposition aims to reconcile the trend set by the Brazilian Judiciary with the right of undertakings to a due process of law, in particular, the right to the double degree of jurisdiction. To do so, it will consider the peculiarities of the Brazilian Competition System, in special the unsuccessfully attempted previous models, the benchmark provided by the two main models (European and American) and peer agencies in Brazil, to finally propose and justify the implementation of a Second Instance Administrative Appellate Tribunal within CADE.

COMPETITION POLICY EVALUATION THROUGH DAMAGE ESTIMATION IN FUEL RETAIL CARTEL IN LONDRINA, BRAZIL

ABSTRACT This paper estimates the fuel retailer cartel damages in the city of Londrina, Parana, part south of Brazil, using reduced and structural forms for supply and demand. Brazilian Competition Authority (CADE) documents help to characterize the ethanol and gasoline retailers involved in the collusion. The objective is to evaluate competition policy by comparing the amount of estimated damages with the amount of applied fines. This paper also adds an important result to gasoline substitution, as data shows ethanol is perceived as a perfect substitute and its price is inelastic. Results show an overcharge of 3.6% to 6.6% in the gasoline market and up to 12% in the ethanol market during collusion. Fines should consider the deterrence effect and, giving the low probability of detection, CADE’s applied fines seemed to be in line with this objective.

O CASO UBER E AS POSSÍVEIS PRATICAS RESTRITIVAS À CONCORRÊNCIA: COLUSÃO OU CONDUTA UNILATERAL? (Uber: Collusion, or Unilateral Conduct?)

Portuguese Abstract: O presente artigo trata da analise do caso Uber no Conselho Administrativo de Defesa Economica, que teve como resultado o arquivamento pela autoridade antitruste brasileira, em virtude da inexistencia de indicios suficientes para a configuracao de infracoes a ordem economica. O estudo perpassa pelas possiveis condutas restritivas a concorrencia nas quais a empresa Uber, derivada do modelo de negocio desenvolvido por uma empresa de rede de transporte (ERT) e inserida em um mercado inovador de servicos de transporte remunerado privado individual de passageiros e de plataforma de varios lados, poderia ter praticado, quais sejam: cartel hub and spoke, influencia a adocao de conduta comercial uniforme, ou fixacao de preco de revenda. A analise de tais praticas anticoncorrenciais pela Uber, atraves das metodologias de analise concorrenciais, regras per se e regra da razao, levou em consideracao, principalmente, as eficiencias e beneficios que a ERT Uber trouxe para o mercado e para o consumidor, atraves da profunda reestruturacao dos servicos de transporte de passageiros do pais. English Abstract: Uber’s platform, as is the case of any transportation network company (TNC), is a multi-sided platform that promotes interaction between passengers and drivers. It is therefore relevant to analyze, based on the proceeding filed and later dismissed, by the Cade General Superintendence, the practice of possible anticompetitive conduct by Uber derived from a business model that didn’t even exist a few years ago. The case was based on the analysis of anticompetitive practices, especially hub and spoke cartel, the influence to the adoption of uniform business conduct and resale price fixing, taking into account the traditional analysis methodologies of competition crimes, per se rules and rule of reason. It was necessary to verify, from the definition of the query and the rule to be used, the net result that Uber TNC brought to the market and to consumers, through the deep restructuring of Brazil’s passenger transport services. In view of the high control exercised by the Uber platform with its suppliers, since its business model has its own characteristics that tend to coordinate their partner drivers’ performance, questioning the possible practice that restrict competition is pertinent. Such inquiries are basically related to how the Uber platform coordinates this operation. Actually, the approach of this article will occur in two phases: definition of conduct, in other words, categorize Uber’s business model in a few competition violations described in article 36 of the Brazilian Competition Defense Law (hub and spoke cartel, influence on the adoption of uniform business conduct, or resale price fixing); and then, define which analysis rule is used, whether rule of reason or unlawful per se.

BRIEF ANALYSIS OF COMPETITION DEFENSE IN BRAZIL

The primary aim of this arcticle is to analyse the Brazilian Competition Policy System (BCPS) in terms of its design, its challenges and its evolution. Furthermore, it seeks to give an overview of the large and recent modifications experienced by the antitrust institutional and normative drawing in Brazil, which will greatly contribute to the freedom of the market and the welfare of the consumers.

BRIEF ANALYSIS OF COMPETITION DEFENSE IN BRAZIL

The primary aim of this arcticle is to analyse the Brazilian Competition Policy System (BCPS) in terms of its design, its challenges and its evolution. Furthermore, it seeks to give an overview of the large and recent modifications experienced by the antitrust institutional and normative drawing in Brazil, which will greatly contribute to the freedom of the market and the welfare of the consumers.

BRIEF ANALYSIS OF COMPETITION DEFENSE IN BRAZIL

The primary aim of this arcticle is to analyse the Brazilian Competition Policy System (BCPS) in terms of its design, its challenges and its evolution. Furthermore, it seeks to give an overview of the large and recent modifications experienced by the antitrust institutional and normative drawing in Brazil, which will greatly contribute to the freedom of the market and the welfare of the consumers.

How Does Brazil Review Multi-Jurisdictional Merger Cases? An Empirical Study from the Competition Authority's Perspective

This paper puts the Brazilian Competition Authority in the center of the debate involving multi-jurisdictional merger control review. It aims at answering the following question: how relevant and complex are multi-jurisdictional merger cases submitted to CADE? Adopting the empirical method, we analyzed 726 merger cases submitted to CADE in 2015 and 2016. We conclude that multi-jurisdictional cases represented a substantial share of all cases; there is no significant difference of complexity between domestic and multi-jurisdictional cases; and, despite CADE’s declared enhanced international cooperation strategies, it is not yet clear how this influences CADE’s decisions.

Dispositivos da concorrência: como e em que medida a política antitruste faz mercados

A política de defesa da concorrência brasileira busca garantir a concorrência nos mercados nacionais proibindo determinadas condutas empresariais e verificando os impactos de fusões e aquisições empresariais. Baseado em um trabalho etnográfico realizado no órgão responsável por essa política pública, o Con- selho Administrativo de Defesa Econômica – o CADE –, este ar- tigo demonstra como e em que medida esta forma de governo, entendida como um dispositivo, produz ou transforma mercados ao direcionar as ações de seus participantes. Aponta-se para três mecanismos pelos quais esse direcionamento ocorre: (i) a defi- nição de limites legais das práticas empresariais; (ii) a mobilida- de e circulação de artefatos; e (iii) a pedagogia implícita na ação governamental.

About Law, Economics and Argumentation: The Forgotten Case of Labor Concerns in Brazilian Competition Policy and Why It Still Matters

Optimists would say the Brazilian competition policy has been a successful case of antitrust revolution in Latin America. However, the perceived success of competition law hides old inconsistencies in antitrust practice regarding an unusual topic: the interplay between merger control and labor market regulation in the 1990s. That policy interplay could well be seen as only an old miscarriage of “antitrust justice” in developing countries. It may not be the case, though. Past intersections of different regulatory domains, and the lack of accountability as to the reasons for abandoning labor concerns, can still affect the legitimacy of competition policy. Such failures in policy-making could also create conflicts between the Brazilian Competition Authority (CADE) and authorities responsible for enforcing labor laws. In view of those potential hurdles to antitrust implementation, this paper takes a normative stance on the question of how CADE could justify what appears to be a definitive shift in competition policy away from labor market regulation. My analysis is centered on policy justifications: instances of legal argumentation meant to support implementing decisions. Accordingly, antitrust decision-making is framed within the argumentative discourse of competition law, as a product of practical reasoning informed by legal rules and economic knowledge. That said, I do not offer a positive answer as to whether and how CADE should justify its decision to break the interplay between merger control and the regulation of labor markets. Instead, my claim is only that, in defense of such implementation choice, justifications grounded on economic theory may become, in practice, an informal fallacy. This paper thus contributes to the literature by identifying logical flaws in arguments that could justify a policy decision implicit in Brazilian competition law. As an unusual topic in antitrust policy, the broken interplay between merger control and labor market regulation also allows me to explore the impact of economic indeterminacy on legal discourse. I demonstrate that disagreements among economists can reduce the plausibility of arguments based on economic consequences. In doing so, this paper challenges some uses of economic analysis of law, as argumentation technique, in legal reasoning.