Unilateral conduct

Unilateral conduct by non-dominant firms

Are there any rules applying to the unilateral conduct of non-dominant firms?

Article 36, II, of Law No. 12,529/2011 forbids any unilateral conduct (eg, tying, predatory price, patent abuse) that leads to dominance of a relevant market of goods or services. As mentioned, Law No. 12,529/2011 presumes dominance whenever ‘a company or group of companies’ is able to unilaterally or jointly change market conditions or when it controls 20 per cent or more of the relevant market.

In the Unilever case, even though both Unilever and Nestlé adopted the same approach towards retailers, only Unilever’s conduct was considered an antitrust infringement. This is because CADE understood that Nestlé did not hold a dominant position in the ice cream market.