Arquivo de Articles - Grinberg Cordovil Advogados

Brazilian Ministry of Finance Proposes New Regulatory Framework for Digital Platforms

Ricardo Motta — Thu, 10 Oct 2024 20:33:03 +0000

The Brazilian Ministry of Finance has introduced a series of measures aimed at regulating digital platforms, which have become a critical part of the modern economic ecosystem. The proposals were outlined during a press conference, where the Ministry shared details of the new regulatory framework designed to address the growing influence of these platforms in markets such as e-commerce, fintech, and social media. Simultaneously, a report with the analysis and main conclusions was released. We present below the main issues raised both at the press conference and in the report:

The Justifications for the New Regulatory Measures

The Ministry’s report provides a comprehensive review of the current state of digital platforms, emphasizing the significant role they play in connecting consumers, service providers, and advertisers. According to the report, platforms benefit from strong network effects, meaning that their value grows as more users join. This same dynamic has led to market dominance by a few large players, limiting competition and raising concerns about data privacy.

Drawing from international examples, the report compares the Brazilian proposal to regulatory models in the United States, the European Union, the United Kingdom, and Japan. It concludes that current antitrust laws are insufficient to address the unique challenges posed by digital platforms. In response, the Ministry opted for a hybrid regulatory approach that combines preventive measures seen in Europe with reactive mechanisms that are, in principle, more flexible and adaptable to each platform and/or specific service provided to users.

The report indicates that the proposals will be presented to Congress in the coming months, possibly through a government-backed bill. Legislative changes are essential to grant CADE, Brazil’s competition authority, the power to designate certain platforms as “gatekeepers” (or, in the adopted terminology, systemically relevant platforms) and to impose specific obligations on them.

Key Proposals from the Report

The Ministry’s report includes several key proposals, summarized below:

Proposal 1: Designating Systemically Relevant Platforms

A new legal instrument will allow CADE to designate systemically relevant economic agents in digital markets based on a combination of qualitative and quantitative criteria. This designation will identify platforms that possess significant market power due to their size, user base, and role in multi-sided markets.

Qualitative criteria: Platforms with strong network effects, multi-sided markets, access to large amounts of personal and commercial data, and the provision of multiple digital services will be considered.
Quantitative criteria: Minimum revenue thresholds will ensure that only large economic players are subject to designation, avoiding overregulation of smaller companies.
Designation process: The process can be triggered by CADE or third parties, including civil society organizations, with all decisions subject to approval by CADE’s Tribunal.

Proposal 2: Substantive obligations

Once designated, the platforms may be subject to general and specific obligations, as assessed by CADE. These obligations aim to ensure fair competition and provide clarity to consumers and other stakeholders.

General obligations: Designated platforms may be required to notify CADE of any mergers or acquisitions and adhere to transparency requirements related to their services and products.
Specific substantive obligations: These can include both positive and negative requirements, such as modifying business practices, ensuring data access to third parties, and enabling interoperability with other platforms. Platforms may also be restricted from self-preferencing, a practice where they prioritize their own services over those of competitors.
Monitoring and compliance: Platforms will need to provide regular reports to CADE, demonstrating compliance with both general and specific obligations.

Proposal 3: Modifications to CADE’s structure

CADE will have the authority to impose obligations on designated platforms based on a thorough investigation of each company’s business model. These obligations will be tailored to address the specific risks posed by each platform. A specialized unit within CADE should be created to manage the designation process and monitor the obligations imposed on these platforms. This unit will collaborate with other regulators, such as ANATEL (the telecommunications agency) and ANPD (the data protection authority), to ensure sector-specific compliance.

The full list of proposals

The proposals focus on establishing new legal instruments for designating systemically relevant platforms and adjusting existing antitrust tools to better address the unique challenges posed by the digital economy. According to the report and the speeches during the press conference, these measures aim to enhance competition, transparency, and regulatory oversight in multi-sided markets, ensuring that platforms with significant market power are subject to appropriate scrutiny and obligations.

The proposals also emphasize the importance of collaboration between regulatory bodies to ensure effective enforcement and compliance in the rapidly evolving digital landscape.

Group 1 – New Instrument for Promoting Competition in Systemically Relevant Platforms

Proposal 1: Establish a procedure for designating systemically relevant platforms based on qualitative and quantitative criteria, such as multi-sided markets, network effects, and revenue thresholds.
Proposal 2: Introduce procedural and transparency obligations for designated platforms, including prior merger notifications and transparency in services and terms of use.
Proposal 3: Allow CADE to investigate designated platforms and impose specific substantive obligations to address competition concerns.
Proposal 4: Create a specialized unit within CADE to implement and monitor the new pro-competitive tool for designated platforms.
Proposal 5: Implement substantive obligations in collaboration with regulators like ANATEL and ANPD to address technical and sector-specific concerns.
Proposal 6: Strengthen CADE’s capabilities for conducting market studies, granting proactive analysis power to the Department of Economic Studies.
Proposal 7: Create an inter-institutional cooperation forum between CADE and other federal bodies to facilitate information exchange and collaboration on digital market issues.

Group 2 – Adjustments to the Application of Antitrust Tools for Platforms in General

Proposal 8: Update antitrust analysis tools to incorporate network and ecosystem analyses for assessing competitive risks in digital platforms.
Proposal 9: Revise CADE’s merger notification form to include specific questions on digital market dynamics, such as network effects and data use.
Proposal 10: Adopt the ordinary process for analyzing mergers involving digital platforms with a large number of users, allowing for deeper analysis.
Proposal 11: Use the flexibility of Law 12,529/2011 to require merger submissions that pose competitive risks, even if they do not meet notification criteria.
Proposal 12: Update revenue thresholds for prior merger notifications to focus CADE’s resources on transactions with greater competitive impact.

Looking Ahead

The Ministry emphasized that this regulatory framework aims to create a balanced approach, ensuring that digital platforms contribute to a competitive, transparent, and fair market in Brazil. The proposals will undergo further scrutiny once presented to Congress, and the Ministry anticipates that discussions will continue in the coming months.

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The Cloud Gaming market and CADE´s mismatch with the FTC and CMA

João Pedro Pires Mendonça — Tue, 20 Jun 2023 16:16:24 +0000

In April 2023 Microsoft lost another battle in its plans to consolidate its position in the cloud gaming market, through its platform for the Xbox gaming consoles. The acquisition of Activision Blizzard, the owner of famous gaming franchises such as Call of Duty, World of Warcraft, and Doom, by Microsoft makes up for a 69 billion dollars deal that suffered a recent turnover caused by the Competition and Markets Authority (CMA), the UK antitrust agency.

The British antitrust agency decided to block the deal, reasoning that the acquisition of Activision Blizzard by Microsoft would cause a substantial and harmful concentration in the cloud gaming industry, harming the UK consumer. CMA´s decision is subject to a court appeal by Microsoft, the court section is scheduled to the week of July 24th .

The outlooks of the operation don´t seem very promising in the USA jurisdiction either, given the fact that the FTC, US´s antitrust agency, also has spoken against the acquisition. A evidentiary hearing is scheduled for august 2nd . In the Brazilian jurisdiction the merger control was approved without any remedies, as well as in China, the European Union amongst other jurisdictions.

It is curious that the US and UK jurisdictions are the responsible for bringing a more thorough and hard analysis on such a merger, when it is usually the European Union that brings a harder approach on the use of antitrust law against the big tech companies. Perhaps what we are seeing is different approaches on facing big tech, UK and US are using the merger control tool whilst the EU is betting on repressive approach with inquiries and prosecuting anticompetitive conducts.

There is still a chance that de CMA is seeking to regain its protagonism in a post Brexit moment. The only certainty is that competition law firmly holds itself as the main stage in the fierce fight in-between governments and big techs.

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ANPD selects experts to discuss Simplified Registration of Personal Data Processing Operations

Luiza Lopes Ardachnikoff — Wed, 30 Nov 2022 14:56:05 +0000

On November 4, the National Data Protection Authority (ANPD) began the registration of experts interested in discussing the preparation of a registration model to simplify the operations of personal data processing performed by small agents (ATPP). Experts interested in collaborating with the submission of information should manifest until December 4th, through the Participa Mais Brasil platform.
Article 9 of the Regulation for the application of the LGPD to small agents, approved by Resolution CD/ANPD No. 2, provides for the availability by the ANPD of a model for simplified registration of personal data processing operations for these agents. The model is a spreadsheet containing: (i) instructions for filling in the document; (ii) a model treatment record, with 15 columns for filling in relevant topics in making the record, which may be adapted to the organizational reality of each treatment agent; (iii) examples on how to fill in the register.
The ANPD, according to its regulations, classifies ATPPs in the following categories: small businesses; startups; legal entities of private law, including non-profit; natural persons and non-personalized private entities. The legal nature, gross revenue, and treatment risk are also considered.
Resolution CD/ANPD No. 2 attributed a distinguished legal regime to these small treatment agents with the relaxation of some of the LGPD’s obligations, such as the exemption from the obligation to appoint an executive/person in charge of processing personal data.
In this context, the ANPD has launched an Information Security Guide for ATPPs, presenting some information security measures, with the aim of protecting personal data under the custody of small agents, who often do not have specialized information security personnel on their staff.
The ANPD intends to receive contributions from personal data processing agents, data subjects, experts and other interested parties with the aim of constituting a good practice and assisting in the documentation of data use by organizations.
More information about the model provided and registration for those interested in collaborating are available at this link.

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CADE and the Economic Freedom Law

Flávia Porfírio Couto — Tue, 29 Nov 2022 15:44:22 +0000

In June, the Financial Inspection and Control Commission of the National Congress (“Commission”) forwarded a request for supervision and control to the Federal Court of Accounts (TCU), to be carried out jointly by the Commission and the TCU to assess the performance compliance of the Administrative Council for Economic Defense (CADE) with the precepts of the Economic Freedom Law (Law 13.874/2019).

The Commission proposed the following lines of inquiry for the referred to inspection, formulated as objective questions to be answered in the inspection process: (i) Is there coherence and harmony in CADE’s decisions, regarding authorizations, penalties, fines, and other decisions, concerning different companies?; (ii) Is there any bias in the collegiate’s decisions that may be harming the business environment in our country?; (iii) How is CADE incorporating the provisions of §3 of art. 1 of Law 13,874/2019 in its decisions?; and (iv) Is there any aspect of CADE’s performance that may be increasing the degree of legal uncertainty in our country?

As a result, TCU’s plenary sent questions to CADE about the performance of some of its bodies and the compliance of its day-to-day activities with the dictates of the Economic Freedom Law. The questions sent to CADE were:

if the Department of Economic Studies (DEE/CADE) prepared studies, regarding the scope and possible impacts of Law 13,874/2019, in relation to the performance of the autarchy. If so, clarify what was done, and forward relevant documentation to this Court;
if CADE promoted any changes in internal regulations and/or in procedural rites, in order to guide and adapt the activities carried out by its technical staff and/or its judging bodies, in view of Law 13,874/2019. If so, indicate what changes were made and send this Court a copy of the amended rule; and
when judging the cases submitted to it, if, and how, has CADE been incorporating the principles and provisions of Law 13,874/2019 into its decisions, exemplifying, if possible, judgments handed down by the autarchy since the enactment of the referred to law.

The work of the Commission and the TCU began with a meeting scheduled for the first week of November with CADE to address this issue.

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CADE regulates the sharing of Technical Notes with Public Prosecutors

agenciajavali — Fri, 28 Oct 2022 13:33:24 +0000

On October 18, 2022, the General Superintendence (GS) of the Administrative Council for Economic Defense (CADE) published Ordinance no. 21. According to the Ordinance, in cases where the GS/CADE recommends the conviction of players for taking part in cartels, the respective Technical Notes that grounded the recommendation should be forwarded to the competent Public Prosecutor’s Office.
Particularly in Leniency Agreements or even cartel investigations for which an specific Public Prosecutor has been already assigned, , the Technical Notes will be sent directly to this officer. In parallel, the representative of the Federal Public Prosecutor’s Office at CADE will be communicated when the Technical Note with recommendation of conviction is shared.
According to the Ordinance, the public versions of the Technical Notes shall be shared, in accordance with the rules provided for in Resolution no. 21/2018. This Resolution determines, in its 1^st article, that the documents and information contained in administrative procedures are public and their disclosure should occur at the appropriate procedural stage, in accordance with articles 8^th, 9^th and 10^th of this same act.
Such Resolution also determines that, during the instruction phase, the GS/CADE will make public versions of the Technical Note opening the administrative procedure available, as well as the GS/CADE’s final Technical Note. These public versions must contain: (i) the indication of the defendant and, where applicable, the plaintiff; (ii) statement on the unlawful conduct attributed to the defendant; (iii) the summary of the facts to be investigated; and (iv) the indication of the legal rule related to the alleged infringement (article 10, § 1^st, Resolution CADE no. 21/2018).
The confidential versions of those documents can only be made available after the final decision of CADE’s Tribunal.

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National Data Protection Authority publishes Guide on Cookies

Mariana Mello Henriques — Wed, 26 Oct 2022 14:54:12 +0000

The National Data Protection Authority (“ANPD”) has just released its Guide on Cookies and Personal Data Protection. The regulation is relevant topic as it addresses a technology widely used for collecting and processing data in digital environments.
Among the information that can be processed by these files that are able to collect data – the so-called Cookies, there is personal data, which is where the ANPD’s concern with the subject comes in. This type of file can be used for various purposes, such as remembering choices previously made by that user (i.e., password or login), measuring the audience of a particular site, and other activities. To create this “memory,” cookies may need to store personal data – identifying individuals directly or crossing data, which allows indirect identification, which is precisely what causes the General Data Protection Law (“LGPD”) to apply.
The ANPD deals with the concept of cookies in its Guide, by presenting a classification of different types (i.e., first-party cookies, third-party cookies, necessary cookies, analytical cookies, functionality cookies). Additionally, it addresses the principles applicable to the processing carried out through them, more specifically – the principles of purpose, necessity and adequation, and of free access and transparency, as well as detailing the rights of the holder applicable when using them and how to guarantee them.
Moreover, the guide includes a topic that specifically addresses the legal hypotheses that would be potentially applicable when using cookies, which are those of consent and legitimate interest and detail the particularities of each of these hypotheses within this context.
Furthermore, the ANPD makes specific guidelines on Cookie Policies, suggesting that they be made available: (i) as a specific section of the Privacy Notice; (ii) in a specific and separate location; or (iii) in the cookie banner itself, while always respecting the necessary transparency, concerning data processing: “most importantly is that clear, accurate, and easily accessible information is made available on the use of cookies and the collection of personal data, regardless of the mechanism adopted.”
The guide characterizes cookie banners as a realization of principles and rights provided for in the LGPD, since they can be a way of enforcing the rights and principles of law. Thereby, it determines a series of good practices relating to these banners, as well as lists of practices that are not recommended.
Among the best practices, the ANPD suggests the description of the categories of cookies, in accordance with their uses and purposes; the presentation of simple, clear, and accurate descriptions and information regarding these purposes; the permission to obtain consent for each specific purpose, according to the categories identified in the banner, when applicable; and the disabling of consent-based cookies by default. Some of the practices that are not recommended are making it difficult to manage cookies (i.e. not making specific management options for cookies that have different purposes available); only presenting policy information in a foreign language; presenting a list of cookies that is overly detailed, generating an excessive amount of information, which can make it difficult to understand and can lead to fatigue, not allowing the holder to express their clear and positive will; linking consent to complete acceptance of the conditions of use of cookies without providing effective options to the holder.
The Authority reinforces that the Guide will be open for comments and contributions from the civil society, which can be sent to the ANPD Ombudsman through the Plataforma Fala.BR. The complete Guide can be accessed through this link.

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Cade acknowledges gun jumping in procedure terminated by agreement

Sara Tironi — Mon, 24 Oct 2022 20:09:09 +0000

In the trial session on 10/05/2022, the Administrative Council for Economic Defense (Cade) judged another administrative procedure to investigate a merger (APAC), pointing out the occurrence of gun jumping in the end, consistent with consummating the transaction without prior notification. The procedure, which dealt with two mergers involving companies from Grand Brasil Group, was concluded with an Agreement on Merger Control (ACC) and the payment of a pecuniary contribution of more than R$ 2.5 million.
The investigation, which was started by the General Superintendence of Cade (SG) in 2019, assessed the need for mandatory notification of the following transactions: (i) the transference of the Renault dealership and tangible assets by Grand Brasil to Bis Distribuição de Veículos Ltda. (“Bis”), whose agreement was entered into on 03/29/2016; and (ii) the acquisition of tangible and intangible assets from BMMOT Comércio de Veículos Ltda. (“BMMOT”) by a company also belonging to the Grand Brasil Group with a contract dated 12/19/2018. Concerning the latter, the need for notification was discarded, due to non-fulfillment of the revenue criteria of the economic groups involved.
Regarding the first transaction, there was a discussion about the statute of limitations for imposing a fine, considering a time lapse of more than 5 years between the date of the contract and the Court’s decision. CADE decided on the same lines as its jurisprudence and the Opinion of the Specialized Federal Prosecutor’s Office, considering gun jumping as a permanent, illicit wrongdoing that is projected while the acts resulting from the operation last. Thus, the possibility of a statute of limitations was excluded.
Whether the transferred assets would be essential or not was also evaluated for the development of the economic activity of the parties, which would be necessary for characterizing a merger under the terms of art. 90, II of Law 12,529/2011 (purchase or exchange of stocks, shares, bonds, or securities that could be converted into tangible or intangible stocks or assets). It concluded that the assets involved in the operation would be part of the set of assets used in the activity of selling new vehicles in various municipalities. Consequently, the merger would be characterized for notification purposes.
Finally, the decision emphasized the fact that the payment of the contribution does not exempt the companies from the duty of notifying about the merger, which is still mandatory for the effects of its consummation to become regular.
The vote of the Rapporteur Councilor Victor Oliveira Fernandes is available at this link.

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CADE decides to close preparatory proceeding on abusive prices in the pharmaceutical sector

Pedro Fugita de Oliveira — Tue, 11 Oct 2022 14:19:55 +0000

The Administrative Council for Economic Defense (CADE) decided in September to close a Preparatory Proceeding (PP) that investigated the alleged conduct of patent law abuse in the sales of medications for the treatment of Hepatitis C, without imposing any penalty.
The PP was launched due to a complaint filed by entities in the consumer protection and health sectors, who alleged abuse of dominant position by the companies of the Gilead group. The alleged conducts practiced would be: (i) price discriminating the federal entity that purchases its products; and (ii) arbitrary price increases for certain medications. In addition, the Representatives requested the imposition of a preventive measure on the Gilead companies to market sofosbuvir (an antiviral drug for the treatment of Hepatitis C) at competitive prices.
In its defense, Gilead said there were legitimate economic justifications for the difference in the prices being practiced, such as the need to offer better prices to those who purchase larger quantities of the drug. Since price discrimination is not an offense per se, there would be no illicit act being committed here. Regarding the alleged excessive prices, it sustained that there was no abuse of patent power, because its medications are innovative and bring benefits to the consumer. They also stated that there are substitute medications for those supplied by the company, and furthermore, the prices of the medications are regulated by the Drug Market Regulation Chamber (CMED).
Given this, after conducting econometric analyses, CADE’s General Superintendence (GS) issued a Technical Note concluding that there was no evidence of alleged anticompetitive conduct by the Respondents, since the price limits imposed by the pharmaceutical regulation were observed, as well as the gradual and recurring reduction in the price of their products.
It is also important to note that the GS emphasized that it is not its competence to decide whether the prices set by the regulatory agency are abusive. Therefore, the Representatives must present such discussion to the competent bodies to satisfy their interests.
The Preparatory Proceeding can be accessed here.

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Conex apresenta primeiro relatório de seu Plano de Trabalho para o período de 2021-2022

Pedro Fugita de Oliveira — Fri, 19 Aug 2022 19:22:40 +0000

No último dia 17 de julho, o Conselho Consultivo do Setor Privado (Conex) apresentou o 1^o Relatório de acompanhamento do Plano de Trabalho do período de 2021-2022. O documento apresenta o andamento de 23 iniciativas de temas prioritários da agenda do Conselho e que visam aperfeiçoar as políticas de comércio exterior do Brasil. Essas iniciativas são divididas em seis eixos temáticos: Estratégia Comercial, Estrutura Tarifária, Agenda Regulatória, Financiamento às Exportações, Promoção Comercial e Governança do Conex.
Embora algumas iniciativas do Conselho já tenham sido concluídas, há ainda um número expressivo de iniciativas em andamento. É o caso, por exemplo, das discussões para ratificação do Acordo Mercosul–UE e o aperfeiçoamento de mecanismos aduaneiros.
Dentre aquelas que já foram implementadas, é possível mencionar a criação de um fórum dedicado à discussão de temas regulatórios que impactam a competitividade das empresas brasileiras no comércio internacional e de um fórum para discussão de temas que impactam o comércio exterior de serviços, as quais foram viabilizadas graças à cooperação de diversos órgãos reguladores federais. Até o momento, esses fóruns já discutiram diversos assuntos pertinentes ao comércio exterior, como a promoção comercial de serviços de e-commerce, a atualização do Regulatory Peer Review da OCDE e o novo modelo regulatório do Inmetro.
Dentre os temas que ainda estão em monitoramento, destacam-se os referentes à estrutura tarifária brasileira, especialmente aqueles sobre tarifas de importação e tributos relativos ao Mercosul por serem instrumentos relevantes para a concorrência externa do país. Uma das políticas em discussão é o documento que será produzido pelo Instituto Defesa Coletiva (IDC) sobre potenciais benefícios decorrentes da redução de determinadas tarifas de importação de produtos que afetam os consumidores finais. Essa pesquisa busca apresentar ao governo brasileiro um panorama de potenciais efeitos da redução de tributos sobre bens com baixa ou nenhuma oferta no país, o que viabilizaria um maior acesso da população a eles.
Há também a discussão sobre o engajamento do setor privado no processo de reforma da Tarifa Externa Comum (TEC), que ganhou força com os impactos econômicos trazidos pela pandemia da Covid-19 e o conflito entre Rússia e Ucrânia. Ambos os eventos acabaram por incrementar o custo de vida – especialmente da população de baixa renda – e os custos de empresas que utilizam insumos sobre os quais incide a TEC. Para evitar distorções econômicas, grande parte dos tributos do Mercosul sofreram reduções em suas alíquotas, o que motivou o debate sobre a possibilidade de incorporação permanente de redução temporária e excepcional da TEC. Para isso, o Ministério da Economia vem discutindo com diversas entidades do setor privado sobre como deve ser realizado esse processo de modernização do tributo.
Durante a reunião ainda foram apresentados três estudos produzidos pelos membros do Conselho de temas que são considerados prioritários no Plano de Trabalho do Conex, que são:
i) diretrizes para a política comercial brasileira de longo prazo;
ii) análise de preços de medicamentos e sua relação com a Tarifa Externa Comum; e
iii) estudo sobre a agenda de sustentabilidade e a política comercial do país.

O relatório pode ser acessado na íntegra aqui.

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DEE/Cade publishes study on the application of Agent-Based Modeling (ABM)

Marta Maria Bessa Cordão — Mon, 18 Jul 2022 12:10:17 +0000

CADE’s Department of Economic Studies (DEE/CADE) launched the working paper titled, “Agent-Based Modeling applied to antitrust.” Drafted for didactic purposes, the paper makes a broad review of the existing literature on the subject, in order to analyze its applicability to antitrust.

Agent-Based Modeling (ABM) is a methodology that describes an economic system based on the representation of the individuals that compose it and their respective behavior. Once the agents capable of interacting with each other have been identified, a system is created that simulates the results from their interaction.

For example, agent-based modeling can be used to analyze cartels, given its origin in the interactions and cooperation between economic agents, as it allows for the creation of controlled conditions, which are necessary to evaluate their formation and effects. This methodology also allows for better understanding of the effects of an interaction between economic agents on factors such as market price. Ultimately, this methodology works as a means of representing economic phenomena and can be used to delineate behavior patterns in various markets.

Despite the potential utility of AMB, the DEE concludes that the work concerning the topic is quite diverse, while still being scarce in terms of antitrust application. For this reason, it believes that more studies are necessary to evaluate the possibility of using this methodology in the area, since, depending on the object of the study, it is necessary to determine sub-models capable of explaining the behavior of individual companies for the observed phenomena, which would require additional independent work.

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