By: Leonardo Neri

Administrative Council for Economic Defense “CADE”, what would this autarchy be that has been gaining an increasingly larger space in the legal world?

Initially, it is important to clarify that this is an autarchy that is responsible for investigating and deciding on possible anti-competitive conduct, understood as conduct adopted by an economic agent that may cause harm to the competitive market, as well as being responsible for analyzing and proving acts of economic concentration.

Furthermore, it is worth mentioning that CADE has 3 (three) functions, namely: (i) preventive – to control the actions of companies that may put competition at risk; (ii) repressive – to combat conduct that is harmful to free competition; and (iii) educational – to instruct people in the culture of competition, which, in general, the three functions work together so that the processes in this sector can flow quickly, and in a certain way can also be avoided.

In view of this, as an example, in January 2023, Mercado Livre filed a complaint that ended up resulting in an administrative investigation against Apple. This occurred because, according to Mercado Livre, Apple was abusing its dominant position in the application distribution market on iOS, 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 made because, now that Mercado Livre also sells digital items, Apple's rule prevents applications from distributing third-party digital goods and services, so it ends up feeling violated by alleged abuse of power since it is prevented from receiving, given that the payment is made directly through the Apple Store.

Therefore, after the complaint, CADE understood that it would be interesting to open an investigation to investigate possible acts that are violating competition, so that the next step is the response from the person being investigated.

In this example, it is important to note that Apple has already provided its response and as a subsequent step, CADE will continue the investigation to analyze whether or not there is a dominant position in the case.

In view of this, it is clear that CADE also respects the adversarial system and full defense, so that the accused will always be heard. Currently, many companies end up engaging in conduct that violates competition law, for this reason, before changing regulatory policies or implementing new procedures, it is necessary to seek advice to investigate whether this is not violating competition law. For more information on this topic, as well as advice or representation in possible complaints filed by CADE, contact the partner responsible for the litigation team, Leonardo Neri.

With the collaboration of Barbara Gomes