Competition Law Enforcement in Digital Markets: The Brazilian Perspective on Unilateral Conducts

• DOI: http://doi.org/10.1177/0003603X221126159
• Published date: 01 December 2022
• Date: 01 December 2022
• Subject Matter: Articles

https://doi.org/10.1177/0003603X221126159

The Antitrust Bulletin

2022, Vol. 67(4) 622 –641

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DOI: 10.1177/0003603X221126159

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Article

Competition Law Enforcement

in Digital Markets: The Brazilian

Perspective on Unilateral Conducts

Caio Mário S. Pereira Neto*,**, Ricardo Ferreira Pastore**,

and Raíssa Paixão***

Abstract

Following an international trend, Brazil’s National Competition Authority (NCA), the Administrative

Council for Economic Defense (CADE), has been devoting more attention to potential anticompetitive

conducts in the digital economy. This article discusses a set of cases involving unilateral conducts in

the digital economy, assessing CADE’s decision-making practice, enforcement challenges, and tools

used. Building from CADE’s case law, we single out some relevant aspects of the Brazilian experience,

including (1) the cautious approach taken by CADE when evaluating effects of unilateral conducts in

final decisions, (2) the use of interim measures to intervene in early stages of investigations, and (3)

the use of settlements to reach quick solutions with negotiated remedies. A brief conclusion discusses

possible future trends given the experience discussed in the article.

Keywords

antitrust, Competition Law, unilateral conduct, abuse of dominant position, digital markets, exclusivity,

settlements, interim measures, CADE

I. Introduction

The emergence and consolidation of digital markets present new challenges to antitrust authorities

who, while seeking to build expertise on the functioning of these markets, are pressed to analyze poten-

tially anticompetitive practices. Many times, such practices have already been analyzed in traditional

markets in the physical environment, taking new contours in digital markets. Other times, these are new

conducts inserted in the context of new business models.

To face these challenges, reflecting on its own case law to date, the Brazilian antitrust authority, the

Administrative Council for Economic Defense (CADE), has been developing studies about digital

*Professor of Law at FGV Direito SP, São Paulo, Brazil

**Partner at Pereira Neto Macedo Advogados, São Paulo, Brazil

***Lawyer at Pereira Neto Macedo Advogados, São Paulo, Brazil

Corresponding Author:

Caio Mário S. Pereira Neto, Professor of Law, FGV Direito SP, Rua Natingui, 442, Cj 10, São Paulo, 05443-000, Brazil.

Email: caio.pereira@fgv.br

1126159ABXXXX10.1177/0003603X221126159The Antitrust BulletinPereira Neto et al.

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Pereira Neto et al. 623

platforms, mainly headed by the Department of Economic Studies (DEE).1 The authority has also par-

ticipated in studies and policy debates promoted in international fora.2 In the enforcement front, CADE

has been investigating anticompetitive practices in the digital environment, which usually take the form

of unilateral conducts by dominant firms. This new enforcement wave comes after a long period pri-

marily dedicated to the prosecution of cartels and to the review of mergers.

Against this background, the present article discusses CADE’s recent enforcement experience

regarding unilateral conducts in digital markets. In doing so, we identify the most important cases, the

theories of harm raised by the authority, and the tools used to deal with them.

This article analyzes ongoing and closed investigations, organized in the form of Administrative

Inquiries and Administrative Procedures,3 provided for in Law No. 12,529/2011 (“Brazilian Competition

Law”), investigated by CADE’s General Superintendence (“GS”) and decided by CADE’s

Administrative Tribunal of Economic Defense (“Tribunal”), seeking to identify trends in unilateral

conduct enforcement involving digital platforms.4 Our analysis focuses on the following cases, which

are the main investigations involving digital platforms in the past decade (Table 1).5

Based on the lessons extracted from these cases and from other publicly available information (e.g.,

planning documents, documents presenting the authority’s goals, speeches, resolutions), we seek to

identify trends in CADE’s enforcement regarding unilateral conducts in digital markets.

To accomplish these goals, this article is divided into five sections, including this short introduction.

In Section II, the article discusses the cases in which CADE reached a final decision on the merits

regarding the investigated conduct, showing the cautious approach adopted in these rulings. In Section

III, we present the use of interim measures in ongoing investigations, a recent trend that deserves close

attention. In Section IV, we discuss settlement agreements that have been used to close investigations

with behavioral commitments of the investigated parties. Based on this analysis, Section V presents a

brief conclusion, discussing the trends in enforcement of Competition Law to unilateral conducts in

digital markets in Brazil.

1. See, e.g., Departamento de Estudos Econômicos (DEE), Mercado de Plataformas Digitais [Digital Platforms Market],

Cadernos do Cade (2021), https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/estudos-economicos/

cadernos-do-cade/plataformas-digitais.pdf. Accessed July 2, 2022; Filippo M. Lancieri & Patricia A. M. Sakowski,

Concorrência em mercados digitais: uma revisão dos relatórios especializados [Competition in digital markets: a review

of specialized reports], Documento de Trabalho No. 005/2020 (2020), https://cdn.cade.gov.br/Portal/centrais-de-con-

teudo/publicacoes/estudos-economicos/documentos-de-trabalho/2020/documento-de-trabalho-n05-2020-concorrencia-

em-mercados-digitais-uma-revisao-dos-relatorios-especializados.pdf. Accessed July 2, 2022.

2. See, e.g., Conselho Administrativo de Defesa Econômica, Interim Measures in Antitrust Investigations—Note by Brazil,

oeCd (2022), https://one.oecd.org/document/DAF/COMP/WP3/WD(2022)15/en/pdf. Accessed July 2, 2022; Conselho

Administrativo de Defesa Econômica, Ex-Ante Regulation and Competition in Digital Markets, oeCd (2021), https://one.

oecd.org/document/DAF/COMP/WD(2021)63/en/pdf. Accessed July 2, 2022; Competition Authorities Working Group

on Digital Economy, BRICS in the Digital Economy (2019), https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publi-

cacoes/brics-in-the-digital-economy/brics-digital-economy-cade.pdf. Accessed July 2, 2022.

3. Administrative Inquiries and Administrative Procedures are different types of proceedings provided for in the Brazilian

Competition Law. An Administrative Inquiry (or Administrative Investigation) is an investigatory proceeding to

gather initial evidence of a potential infringement to the Competition Law. In turn, an Administrative Procedure (or

Administrative Proceeding) is an adversarial proceeding to apply sanctions to an infringement of the economic order.

See Lei No. 12,529 (Nov. 30, 2011), Lei Brasileira de Defesa da Concorrência [Brazilian Competition Law], arts. 48,

66 and 69, §1 (Br.).

4. In line with a report promoted by the Department of Economic Studies, a digital platform is defined as a digital service

that facilitates interactions between two or more distinct and interdependent sets of users (firms or individuals) who inter-

act through connection to the Internet. See DEE, supra note 1, at 8.

5. The article does not address CADE’s decisions dealing with electronic payments, which share some aspects of digital

platforms, but also have specificities that have led to a different line of precedents.