by: Leonardo Neri
Administrative Council for Economic Defense “CADE”, what would this autarchy that has been conquering a larger and larger space in the legal world be?
Initially, it is important to clarify that it is an autarchy that is responsible for investigating and deciding on possible anticompetitive conducts, understood as those conducts adopted by an economic agent that may cause damage to the competitive market, as well as being responsible for analyzing and proving economic concentration acts.
Furthermore, it should be mentioned that CADE has 3 (three) functions, as follows: (i) preventive – to control the acts of companies that may put competition at risk; (ii) repressive – to fight against conduct harmful to free competition; and (iii) educational – to instruct people in the culture of competition, which, in general, the three functions go together so that the processes in this sector may flow swiftly, and in a certain way may also be avoided.
As an example, in January 2023, Mercado Livre filed a complaint that eventually resulted in an administrative investigation against Apple. This was because, according to Mercado Livre, Apple was abusing its dominant position in the IOS app distribution market, since it requires developers to use the App Store as a payment platform for internal purchases of digital services in software downloaded from the store.
The complaint was filed because, now that Mercado Livre also sells digital items, Apple's rule prevents apps from distributing third-party digital goods and services, so that it ends up feeling violated by alleged abuse of power since it is prevented from receiving, since the receipt takes place directly through the Apple Store.
Therefore, after the complaint, CADE understood that it would be interesting to open the inquiry to investigate possible acts that are violating competition, so that the next step is the response of the one being investigated.
In this example, it is important to inform that Apple has already provided its answer and as a next act, CADE will continue the investigation to analyze whether or not there is a dominant position in the case.
In view of this, one can see that the adversary and the ample defense are also respected at CADE, so that the accused will always be heard. Currently, many companies end up having conducts that infringe the competition law, for this reason, before changing regulatory policies, or implementing new procedures, it is necessary to do some consulting to investigate if this is not infringing competition.
For more information on the subject, as well as consulting, or representation in eventual complaints made by CADE, please contact the partner responsible for the litigation team, Leonardo Neri.