Recent Antitrust Developments in Brazil: CADE’s Decisional Practice in High-Tech and IP-Related Cases
November 10, 2017

Recent Antitrust Developments in Brazil: CADE’s Decisional Practice in High-Tech and IP-Related Cases Authors: João Lima and Roberto Rodrigues, both attorneys at Licks Attorneys. Introduction The importance of the Administrative Council for Economic Defense (CADE), Brazil’s antitrust authority, has been increasing in the past few years. The 2011 antitrust act (#12,529) addresses long-standing deficiencies in the country’s antitrust landscape, giving CADE more institutional power. Under the previous antitrust act, of 1994, CADE’s Administrative Tribunal was swamped with having to rule on an outrageous number of conduct investigations and merger review cases. The reason for this was that the investigatory units at the time – the Secretariat for Economic Law and the Secretariat for Economic Monitoring – had little to no actual decisional power. In order to close an investigation, the vast majority of cases had to go through CADE’s Tribunal. With the enactment of the 2011 act, CADE updated its structure workflow in order to confer to the General Superintendence more decisional power when conducting investigations and reviewing mergers. The General Superintendence now has the power to simply close certain conduct investigations and unconditionally approve mergers that raise no competition concerns, without having to remand the case to CADE’s Tribunal for a final decision. The changes initiated in 2011 had relevant two consequences. First, decisions issued by CADE’s investigative unit, the General Superintendence, became worth examining, as they may provide useful guidance as to what conducts do not raise any antitrust concerns. Second, CADE was given tools to screen cases and distinguish those that raise antitrust concerns from those that do not, and thus to further focus on the specifics of important conduct investigation cases, including those concerning the interface between competition and technology. In light of this, competition scrutiny of High-Tech markets and Intellectual Property Rights (IPRs) has become an issue to watch for the coming years.2 For instance, the dismissal of a Standard Essential Patent (SEP) antitrust complaint filed by TCT against Ericsson; Eli Lilly’s fine due to alleged sham litigation practice; the analysis of Uber’s impact on the market, carried out by the government agency; and the scrutiny of market share on matters involving sham litigation in the Ediouro case—are results of the referred transformation in CADE’s workflow, and will, thus, be examined below. This article was originally published in The AIPLA Antitrust News, please access the following website link.

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