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14 June 2018
Bundling, rebates, offering different commercial terms and conditions to different customers and filing lawsuits to protect IP rights are only a few examples of ordinary commercial behaviour which may be considered abusive under the new Competition Law (12,529/2011) when carried out by dominant firms under certain circumstances.
Since 2018, following a period in which it focused on the persecution of cartels,(1) the Administrative Council for Economic Defence (CADE) has directed more resources towards concluding pending abuse of dominance matters and occasionally launching new dominance cases. In so doing, the most pertinent question has become: how will CADE deal with dominance in future? This is particularly relevant in light of:
Public statements by current and former CADE representatives suggest that abuse of dominance is on CADE's agenda and that the authority will likely direct additional efforts into launching new investigations and concluding pending abuse of dominance matters from 2018 onwards. For example, at the 23rd International Conference of the Brazilian Institute of Competition Studies, Consumption and International Trade (held in October 2017), CADE General Superintendent Alexandre Cordeiro Macedo said that the authority's short-term goal would be to look more carefully at abuse of dominance cases: "It is time for CADE to evolve after focusing on cartels and mergers for so long."
Further, in November 2017 former Chief of Staff of CADE's General Superintendence and current Chief of Staff of CADE's Federal Prosecution Office Amanda Athayde published an article in which she flagged a third wave of competition enforcement in Brazil, which will be characterised by abuse of dominance matters.(3)
Developments in the dominance arena in the first quarter of 2018 have confirmed the above. Both the Administrative Tribunal(4) and the General Superintendence(5) appear committed to concluding pending abuse of dominance matters and occasionally launching new cases.
Based on the recent experience gained in merger control and cartel investigations, CADE is expected to:
There has been a significant increase in the economic sophistication of competition enforcement in Brazil. CADE's use of economic reasoning in its decisions has grown dramatically over recent years and both the Administrative Tribunal and the General Superintendence have asked the Department of Economic Studies to carry out detailed economic analysis in a larger number of matters to support the department's decisions.(6) In addition, the Department of Economic Studies has released a series of studies focused on contemporary issues in competition economics(7) and the competitive dynamics within strategic industries.(8)
The goal is to use economic studies and analysis to complement evidence derived from investigations(9) into relevant market definitions and the effects, efficiencies, design and enforcement of remedies.
CADE acknowledges that cooperation with foreign competition authorities is an important tool in fighting anti-competitive conduct. The exchange of experience has gradually intensified over time and is now part of CADE's routine. Over the past few years, CADE has signed a number of international cooperation agreements with several foreign competition authorities – for example, with the European Commission and North American agencies (eg, the Federal Trade Commission and the Department of Justice), as well as with the competition authorities of Argentina, Canada, Chile, China, Colombia, Ecuador, France, Japan, Mexico, Peru, Portugal, Russia, South Africa and South Korea. CADE has also signed memorandums of understanding with the BRICS countries, the MERCOSUR countries, the World Bank and the Inter-American Development Bank.
In the dominance field, CADE is expected to strengthen enforcement over competition issues that are already widely discussed by North American agencies and the European Commission – for example:
CADE's investigation into wide price parity clauses in contracts entered into between various hotels and 'Booking.com', Expedia and 'Decolar.com' illustrates this trend. CADE provided public statements to the effect that the commitments assumed in Brazil in March 2018 to settle the cases were consistent with those of other jurisdictions in similar investigations.(12) The same can be said about CADE's investigations into Google's practices in the Brazilian online search market. In October 2013 CADE launched three investigations against Google. In September 2017 CADE requested Google to provide an in-depth explanation of the changes to its online searching engine in order to comply with the European Commission's June 2017 deadline.(13)
CADE has also acknowledged that settlement agreements are an important tool in the fight against anti-competitive behaviour in Brazil.(14) CADE has largely used settlement agreements not only to settle cartel investigations (while clearly focusing on ensuring that its settlement policy does not undermine the leniency programme), but also in the context of abuse of dominance matters.(15)
Due to the lack of recurring precedents regarding the different types of abuse of dominance, there is little concrete guidance on what qualifies a unilateral practice as an abuse. The absence of specific enforcement guidelines or safe harbours on abuse of dominance also creates uncertainties regarding CADE's assessment of dominance matters, particularly with respect to:
Although CADE has historically considered an effects-based approach towards abuse of dominance, past decisions are not fully binding on the authority. Further, apart from hardcore cartels, there is no clear list of practices – including for abuse of dominance – that can be assessed on a 'by object' approach.
'By object' infringements, if accepted, should be reserved only for those indisputable hardcore practices (eg, full-fledged collusion) which economic analysis has shown to be anti-competitive in all but the most exceptional circumstances. This is clearly not the case in dominance practices, which can yield efficiencies and would be better assessed under a 'full rule of reason' approach, as has been CADE's past practice. Ideally, dominance behaviour should be prohibited based only on a coherent theory of harm that clarifies:
For further information on this topic please contact José Inácio Ferraz De Alemeida Prado Filho or Carolina Cury Ricciardi at BMA Barbosa Müssnich Aragão by telephone (+55 21 3824 5800) or email (email@example.com or firstname.lastname@example.org). The BMA Barbosa Müssnich Aragão website can be accessed at www.bmalaw.com.br.
(1) Based on CADE's official figures, the Administrative Tribunal ruled on 31 investigations into anti-competitive infringements in 2016. Of these, 20 were cartel investigations and only nine were investigations regarding abuse of dominance (the other two investigations concerned concerted practices). Likewise, the Administrative Tribunal ruled on 13 investigations into anti-competitive infringements in 2017. Of these, 10 were cartel investigations and only one was a dominance investigation (the other two investigations concerned concerted practices).
These new members have not yet clarified their views on sensitive matters, including dominant behaviour. This may affect CADE's decisional practice.
(3) "As três ondas do antitruste no Brasil" ("The three waves of antitrust in Brazil", in English).
(4) During the judgment session held on 23 May 2018, the Administrative Tribunal told the General Superintendence to launch a preliminary investigation into alleged dominance practices by Petrobras in the supply of liquefied natural gas to thermal powerplants. Pursuant to the Administrative Tribunal, Petrobras allegedly engaged in a number of dominance practices to benefit the Petrobras Group's thermal powerplants.
In February and March 2018 the Administrative Tribunal ruled on two of the oldest dominance matters – including the well-known investigation concerning Volkswagen, Fiat and Ford – on alleged abuse of IP rights over independent aftermarket spare parts (Investigation 08012.002673/2007-51). The first case was dismissed on 14 March 2018. The other matter centred on Investigation 08012.007505/2002-48, which reviewed Líder Signature's alleged refusal to supply. The Administrative Tribunal dismissed the case on 7 February 2018. In the first quarter of 2018, the Administrative Tribunal also ruled on two other investigations into, among other things, sham litigation practices (Investigation 08700.000625/2014-08 (dismissed on 28 February 2018) and Investigation 08700.008695/2016-68 (dismissed on 23 May 2018)).
(5) For example, in April 2018 the General Superintendence issued an opinion on one of the oldest dominance investigations in eight years and forwarded the case to the Administrative Tribunal. The investigation concerns Lundbeck and deals with alleged dominant behaviour in the sale of Escitalopram-based anti-depressants (Investigation 08012.006377/2010-25).
In addition, in early 2018 the General Superintendence anticipated that Google should shortly expect opinions on the four ongoing abuse of dominance investigations. Indeed, in the first half of 2018, the General Superintendence issued opinions suggesting that the Administrative Tribunal discuss two of the investigations into Google practices with no penalties (Investigation 08700.004884/2013-19, which examines the practice of scraping, and Investigation 08700.005694/2013-19, which investigates alleged anti-competitive restrictions on the service agreement of Google's online advertising platform, AdWords), and forwarded these cases to the Administrative Tribunal.
As to new investigations, in May 2018 the General Superintendence reopened two investigations into discriminatory practices by entities in charge of managing and allocating employees in the ports of Rio Grande/RS, Belém/PA and Vila do Conde/PA (Investigation 08700.008897/2015-29 and Investigation 08700.008751/2015-83). On 21 May 2018 the General Superintendence also launched a new dominance investigation against Tecon Suape with respect to the supply of port warehouse services in the port of Suape/PE (Investigation 08700.00541/2017-84).
(6) CADE's Resolution 53/2009, an infra-legal document, created the Department of Economic Studies in September 2009 as an advisory unit. Subsequently, the new Competition Law, which promoted a significant institutional reform of the Brazilian competition system, formally established the Department of Economic Studies as one of CADE's bodies.
(9) In 2015 CADE launched two dominance investigations involving Uber. In Investigation 08700.006964/2015-71, CADE investigated taxi drivers trade unions for sham litigation towards Uber. In Preliminary Investigation 08700.010960/2015-97, CADE investigated Uber for unfair competition towards taxi drivers. In October 2017 the Department of Economic Studies concluded its economic analysis Uber's impact on the individual transport of passengers, which revealed that Uber's introduction on the market had had positive effects on consumers. Based on this study, CADE dismissed Preliminary Investigation 08700.010960/2015-97. CADE also dismissed Investigation 08700.006964/2015-71 for lack of evidence.
(11) Brazil: Administrative Council for Economic Defence, President Alexandre Barreto de Souza, available at https://globalcompetitionreview.com/insight/the-antitrust-review-of-the-americas-2018/1147409/brazil-administrative-council-for-economic-defence.
(12) Preliminary Investigation 08700.005679/2016-13 was launched against 'Booking.com', Expedia and 'Decolar.com' in 2016 in order to investigate potential anti-competitive effects resulting from wide price parity clauses contained in the companies' agreements with hotels, which ensured that 'Booking.com', Expedia and 'Decolar.com' had access to these hotels' lowest room rates (and best room availability) offered through any channel. On 27 March 2018 the Administrative Tribunal entered into three settlement agreements with 'Booking.com', Expedia and 'Decolar.com'. The companies committed to amending the wide price parity clauses contained in their agreements with the hotels in Brazil within 60 days from publication of the Administrative Tribunal's decision. To comply with the settlement agreements, 'Booking.com', Expedia and 'Decolar.com' must allow these hotels to offer different room prices and room availability on different online travel agents. This ruling also applies to sales made offline. In public statements, CADE made it clear that the commitments entered into by 'Booking.com', Expedia and 'Decolar.com' are consistent with commitments assumed in other jurisdictions to settle similar investigations (available at www.cade.gov.br/noticias/booking-decolar-e-expedia-celebram-acordo-de-cessacao-com-o-cade).
(13) There are three formal investigations and one preliminary investigation against Google. The first investigation was launched in reaction to a complaint by e-commerce media group Informação e Tecnologia Ltda – the owner of price comparison websites Buscapé and Bondfaro. CADE investigated whether Google was privileging search results for its own sites (eg, the e-commerce engine Google Shopping), rather than competing price comparison websites (Investigation 08012.010483/2011-94).
In the second investigation, which was also launched in reaction to a complaint by Informação e Tecnologia Ltda, CADE examined the practice of scraping (ie, the procurement of competitively relevant content from rival price comparators for use on Google Shopping (Investigation 08700.004884/2013-19)).
The third investigates alleged anti-competitive restrictions on the service agreement for Google's online advertising platform, AdWords, and was launched in reaction to a complaint by Microsoft – owner of the price comparison website Bing (Investigation 08700.005694/2013-19). The preliminary investigation was launched in reaction to a complaint by Yelp in 2016 (Preliminary Investigation 08700.003211/2016-94). According to the complaint, Google allegedly hindered Yelp's activities by routing users to its own listings services.
The General Superintendence provided its opinion in Investigations 08700.004884/2013-19 and 08700.005694/2013-19 and these investigations were forwarded to the Administrative Tribunal. Investigation 08012.010483/2011-94 and Preliminary Investigation 08700.003211/2016-94 are currently before the General Superintendence.
(14) In February 2017 the Administrative Tribunal entered into a settlement agreement with Instituto Aço Brasil in the context of Investigation 08012.0015-94/2011-18 (which dealt with sham litigation practices). The reporting Commissioner Paulo Burnier highlighted the importance of agreements to settle dominance investigations. Former Commissioner Mário de Oliveira Junior made a similar statement in June 2016, when the Administrative Tribunal entered into a settlement agreement with Ediouro Publicações in the context of Investigation 08012.005335/202-67 (which also dealt with sham litigation practices).
(15) For example, in February 2017 the Administrative Tribunal entered into a settlement agreement with Instituto Aço Brasil in the context of Investigation 08012.0015-94/2011-18. In June 2017 the Administrative Tribunal entered into settlement agreements with Rede, Cielo and Elo in the context of Preliminary Investigation 08700.003614/2017-14. In April 2017 the Administrative Tribunal entered into settlement agreements with Itaú and Hipercard in the context of Preliminary Investigation 08700.000018/2015-11. In April 2017 the Administrative Tribunal entered into a settlement agreement with Rede in the context of Investigation 08700.001861/2016-03. In December 2017 CADE entered into a settlement agreement with Petrobras Distribuidora in an investigation relating to the state-owned oil company's dominant behaviour (Investigation 08700.005226/2017-78). In March 2018 the Administrative Tribunal entered into settlement agreements with 'Booking.com', Expedia and 'Decolar.com' in the context of a preliminary investigation launched in 2016 in order to investigate anti-competitive effects resulting from wide price parity clauses contained in agreements with hotels (Preliminary Investigation 08700.005679/2016-13).
Bruna Anklam, Marcos Filipe Sussumu Ueda and Tatiane Kimie Siqui assisted in the preparation of this update.
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José Inácio Ferraz De Alemeida Prado Filho
Carolina Cury Ricciardi