On October 10, 2024, tje Brazilian Ministry of Finance (MF) released the study “Digital Platforms Report: Economic and Competition Aspects and Recommendations for Regulatory Improvements in Brazil“, conducted by the Secretariat for Economic Reforms (SRE). This study is the result of work begun in the first half of the year, with the aim of deepening Brazil's understanding of the economic and competition aspects of digital platforms in the country and supporting proposals to improve the Brazilian Competition Defense System.
The Ministry of Finance indicated at a press conference that there is reasonable alignment on the measures and that the legislative proposals are expected to be submitted to Congress by the end of 2024. There is still no political definition as to whether a new bill will be submitted or whether similar bills will be used.
In general, the report identifies that the competition framework currently in place in Brazil is not sufficient to deal with the competition problems arising from the activities of digital platforms. In this sense, the report suggests:
- Legislative changes to adopt a “New Pro-Competitive Tool”, through the creation of a unit within the scope of the Brazilian Competition Authority (CADE).This division would be responsible for designating digital platforms of systemic relevance and, through a specific procedure, evaluating and creating transparency and/or behavioral obligations (such as interoperability, non-discrimination, prohibition of exclusivity agreements) based on the concrete needs of each case;
- The aim is for CADE to start implementing obligations in cooperation with other regulators, such as Brazilian Telecommunication Agency (ANATEL) and Brazilian Data Protection Authority Agency (ANPD), depending on the specific case, as well as creating a forum for inter-institutional cooperation between CADE, ANATEL, ANPD and National Consumer Secretariat (SENACON);
- As the report indicates,the proposal has an asymmetric scope, and the new rules would only apply to companies with high turnover, while avoiding creating generic obligations for designated companies, which is one of the difficulties faced by European regulation;
- In parallel to the legislative proposals, the report also suggests the adoption of a series of infra-legal measures within the MF and CADE: changes to the transactions notification filling form and updating of the turnover figures for prior notification of mergers; adoption of the regular procedure for transactions involving large digital platforms, given this type of transactions are often analyzed under the fast track procedure; greater use of the power to request notification of transactions that do not met the turnover criteria; adoption of new theories of damage, among others.
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