Every November, the Brazilian Institute of Studies on Competition, Consumer Affairs and International Trade (IBRAC), which comprises law firms, economic consulting firms and companies, hosts its international seminar on competition policy. The annual seminar took place for the 27th time in November 2021 and it used a hybrid model, after a fully virtual event in 2020 due to the covid-19 pandemic.
The seminar assembled national and international academics, authorities, lawyers, and economists who specialise in antitrust. The panels debated on a range of current antitrust issues:
- digital platforms;
- trends in the health sector after the pandemic;
- the payments industry and its future;
- labour markets; and
- the regulation of gatekeepers.
Digital markets were discussed across several panels. In a debate about the evolution of theories of harm, Paula Farani, a commissioner at the Administrative Council for Economic Defense (CADE), pointed to a trend in the recent caselaw of antitrust authorities, which has focused more on theories of harm and the effect on consumer welfare than on the strict definition of relevant markets – a shift in antitrust assessments due to the evolution of digital markets.
In a discussion about the regulation of gatekeepers moderated by European expert Cristina Caffara, Patricia Sakowski, the CADE's deputy general superintendent, said that the Brazilian competition framework was robust and needed to be applied with caution, even though there is pressure from civil society to devise new regulations and more enforcement actions for gatekeepers. Sakowski stressed that there were multiple questions that remain unanswered as regards the effects of gatekeeper regulations and that Brazil could learn from the international context.
CADE President Alexandre Cordeiro, answered questions about the standards that have been adopted by the Brazilian authority to assess unilateral conduct. He said that it was difficult in all jurisdictions to identify a standard of proof in unilateral cases. In this regard, he indicated that the CADE has prioritised a careful approach that avoids false positives and is in line with personnel restrictions (he highlighted the reduced number of case handlers, especially when compared to other jurisdictions such as the United States and Europe).
In a panel about the exchange of competitively sensitive information as an autonomous conduct – a topic that has gained a lot of attention from the Brazilian watchdog – Commissioner Lenisa Prado mentioned the CADE's caselaw and stressed her understanding that such conduct must be assessed by the rule of reason.
Moreover, Diogo Thompson de Andrade (the CADE's deputy general superintendent who is currently the acting general superintendent)(1) stated that the negotiation of cease and desist agreements for cartel cases has been affected by the pandemic, as virtual negotiations have proven to be less agile.
In general, the event marked the return of in-person activities for the antitrust community in Brazil, and the transition to a new administration at the CADE, with a new president of the authority's tribunal, a general superintendent-in-waiting and changes to two of the six commissioners.
For further information on this topic please contact Marcela Mattiuzzo or Paula Pedigoni Ponce at VMCA by telephone (+55 11 3939 0708) or email ([email protected] or [email protected]). The VMCA website can be accessed at www.vmca.adv.br.
(1) The antitrust community is still waiting for a senate hearing to confirm Alexandre Barreto's nomination for the position.