Marcela Abras Lorenzettti – Advogada do Grinberg e Cordovil Advogados
A recent ruling by the Superior Court of Justice (STJ) on payment methods drew attention to the Antitrust Law. The case concerns a writ of Mandamus (Mandado de Segurança) filed by the Câmara de Dirigentes Lojistas de Belo Horizonte aiming at preventing PROCON (Consumer Protection Agency) from considering the differentiation between credit card, cash or check payments unlawful.
In the beginning of October this year, Minister Humberto Martins took a stance on not being possible for retailers/merchants to differentiate clients according to the payment method, as credit card is a payable at sight method. This decision alters the jurisprudence previously fixed by this Tribunal on this matter.
The reasoning exposed by the ruling assumes that, once a credit card transaction made by the consumer is accepted, the latter is totally free from any other relation with the establishment. This is due to the fact that, once the transaction is approved, the financial institution (issuer or flag) takes on total responsibility for the payment before the commercial establishment.
For those reasons, the Minister, unanimously followed by the Panel, understood that the differentiation between credit card, cash or check payments would be abusive. One of the legal reasoning present in this ruling comprised the Section of the Antitrust Law (Law No. 12,529/11) that precludes the discrimination of buyers or suppliers by differentiating prices.
This decision works as an important orientation to the already heavily discussed in the jurisprudence controversy, representing a change to the previous understanding of STJ. In other opportunities, the Tribunal ruled in the sense that a differentiation would be allowed, hence the inexistence of legal impediment. In this sense:
ADMINISTRATIVE. INCREASE OF PRICES OF SALES PAID WITH CREDIT CARD. FINE. SUNAB. DISMISSAL.
1. The Sunab (National Superintendency of Supply) shall not fine the merchant that increased the price of goods for the transaction paid with a credit card, at the absence of law prohibiting this differentiation. 2. Special Appeal filed before the Superior Court of Justice dismissed.
(REsp 827.120/RJ, Minister Rapporteur Castro Meira, judged on 5.18.2006, published on 5.29.2006.)
In fact, the difference of prices for cash or check and credit payment is considered by many to be justifiable, due to the taxes that must be paid by the retailer, as well as for the term (in general, 30 days) contractually fixed for the payment settlement.
The relevance of this judgment for the antitrust law derives from Minister Humberto Martins’s reference in his ruling to the antitrust legal framework. The reference to the Law No. 12,529/11, Art. 36, subsections X and XI could raise doubts to the direct application of said law by PROCON. However, one must consider this possibility carefully.
Firstly, a brief reading of the referred decision is sufficient for one to understand that the Law is not the main foundation of the Court’s ruling. The greater motivation for ruling that the aforesaid conduct was abusive were the consumer laws, as well as that the STJ aimed at highlighting the Consumer Defense Code’s provisions that protect the consumer from abuses committed by the goods or service supplier.
In fact, the infringement to the economic order due to discriminatory practices was not the focal point in the present case, there being no comprehensive analysis of the antitrust aspects involved in the claim. The Antitrust Law is only mentioned as a subsidiary argument in the ruling.
Besides, one can argue that, under the administrative sphere, Law 12,529/11 defers the competition-related competence to Cade. Said Law, in its Articles 9 and 13, sets forth in a clear and irrevocable manner that it is up to the General Superintendence and to Cade’s Tribunal to ensure the fulfilment of the provisions therein. In other words, within the administrative sphere, the competence for applying the Antitrust Law is solely reserved to Cade.
It is worth recalling that, nevertheless, the operations of the Judiciary within the scope of competition-related controversies must not be dismissed, bearing the non-obviation of Judiciary jurisdiction principle in mind – a guarantee protected under the Federal Constitution and comprising a foundation of the democratic State governed by the rule of law.
In conclusion, one may affirm that this ruling corresponds to a material judgment, which is able to solve the highly discussed question by the doctrine. However, as to the Competition Law, the consequences of said decision issued by STJ remain uncertain.
 STJ. 2nd Panel. REsp 1.479.039-MG, Minister Rapporteur Humberto Martins, judged on 10/6/2015.
 Currently, an appeal has been filed for amendment of judgement (pending).
 Art. 36. Constitute violations of the economic order, regardless of fault, acts of whatever kind, which have as their object or may have the following effects, even if they are not achieved:
X – to discriminate against purchasers or suppliers of goods or services by means of differentiated pricing or operational conditions of sale or service; XI – to deny the sale of goods or the provision of services within the normal payment terms for commercial uses and customs.