The Use of EU Competition Precedents in Brazilian Competition Judgments (A Utilização dos Precedentes da União Européia No Direito Concorrencial Brasileiro)

Abstract:     
This paper (written in Portuguese) examines the relevance of European Union (EU) competition decisions for guiding the judgments of the Conselho Administrativo de Defesa Econômica (CADE).

Although CADE does not directly base its judgments on foreign law, when interpreting Brazilian law it refers to EU and US antitrust for ideas on how to develop its own rules and to confirm its own judgments, Section 2. Some believe that this is appropriate. There are many who argue that the Brazilian competition rules governing anti-competitive arrangements aim to protect consumer welfare, Section 3(b). Similarly, Section 4(b) shows that the European Commission (the main body enforcing the EU competition rules) and academic opinion in general, believe that consumer welfare is and should be the sole goal of the EU rules forbidding anti-competitive arrangements. If Brazilian and EU competition laws have the same goals, then as long as one takes account of the different institutional and socio-economic contexts (as well as the specific provisions of the competition laws themselves), it makes sense for CADE to rely on the outcomes of similar EU competition decisions to confirm its own judgments.

However, before one can decide whether or not CADE should act in this way, one must ensure that the goals of these two competition systems are really aligned. Section 3(c) argues that, in fact, the Brazilian competition rules do not have a sole consumer welfare goal. Similarly, knowing the goals of EU competition law is important. Sections 4(c) and (d) argue that, in fact, the EU competition rules do not have a sole consumer welfare goal either; although the EU rule is guided by a differently balanced constellation of goals from the Brazilian law.

Given their differing goals, Section 5(a) discusses the theoretical problems of relying on EU competition decisions in Brazilian competition judgments. Section 5(b) goes on to provide two illustrative examples of where these differing goals may be important. Section 6 concludes that reference to EU competition decisions is valuable in order to get ideas about how another competition regime approaches and solves an equivalent factual scenario. However, CADE may be placing an inappropriate amount of reliance on these decisions when it uses them to confirm its own judgments.

This paper focuses on the rules that apply to anti-competitive agreements (not including merger agreements) on the EU side. The relevant rule in the European legal order is Article 101 TFEU. We do not examine US antitrust, but a similar point is relevant there, to the extent that US goals diverge from Brazilian ones.

Keywords: Brazil, EU, European Union, antitrust, competition law, Article 101, comparative law, goals, objectives, system

JEL Classification: K21, K40, L42

working papers series