In July 2026, the United States announced additional tariffs of 25% and 12.5% on certain imports originating in Brazil, based on Section 301 of its trade legislation. According to the Ministry of Development, Industry, Trade, and Services (MDIC), the combined measures affect 23.1% of Brazilian exports to the United States. [1]

One alternative lies within the multilateral trading system. Brazil can invoke the World Trade Organization’s (WTO) dispute settlement mechanism to challenge the compatibility of the U.S. measures with the obligations assumed under the organization. In fact, in late July, the country initiated formal consultations at the WTO, arguing that the additional tariffs imposed by the United States exceed the tariffs that would otherwise apply under the U.S. Harmonized Tariff Schedule. [2] The use of this mechanism, however, takes place within a challenging institutional context: the WTO Appellate Body remains unable to hear appeals due to a lack of members, which undermines its effectiveness.

At the domestic level, Brazil also has Law No. 15,122/2025, known as the Economic Reciprocity Law, which establishes mechanisms for responding to unilateral measures, policies, or practices by other countries that impact Brazil’s international competitiveness.

On August 14, the Brazilian government began the analysis required by law regarding the measures adopted by the United States. The initiation of the procedure, however, does not imply the immediate adoption of countermeasures: the mechanism provides for stages of analysis and consultations—including diplomatic ones—before any applicable measures are ultimately determined.

The discussion on retaliation, therefore, is not limited to the legal possibility of adopting countermeasures. Defining a potential response also involves—and perhaps primarily involves—an assessment of its economic impacts, effects on businesses and consumers, the degree of interdependence between markets, compatibility with international commitments, and possible repercussions on bilateral negotiations.

In this scenario, retaliation, negotiation, and multilateral action are not necessarily mutually exclusive alternatives. The question, therefore, is not merely whether Brazil should retaliate, but whether—and how—any retaliation might be used as a negotiating tool.

[1] Available at: https://www.gov.br/mdic/pt-br/assuntos/noticias/2026-periodo-eleitoral/julho/alcance-das-medidas-tarifarias-dos-estados-unidos-sobre-exportacoes-brasileiras.

[2] Available at: https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds646_e.htm.

O conteúdo Trade Retaliation: What Are Brazil’s Options in Light of the New U.S. Tariffs? aparece primeiro em Grinberg Cordovil Advogados.

1.Introduction

Nearly a year after Bill No. 4,675/2025 was introduced in the Chamber of Deputies, and following at least two years of intense debate on the pros and cons of ex ante regulation applicable to gatekeepers in digital markets, Brazil’s regulatory agenda on this issue is entering a new phase. On July 2, 2026, the bill’s rapporteur, Representative Aliel Machado (PV/PR), presented a Substitute Bill (“Substitute Bill”) containing several changes to the framework originally proposed.

Among other modifications, the Substitute Bill revises the criteria and procedures applicable to designation and to the imposition of special obligations. Some of these changes narrow the scope of regulatory intervention or provide additional procedural requirements. The resulting framework retains certain features found in international initiatives, including the European Digital Markets Act, the United Kingdom’s Digital Markets, Competition and Consumers Act, and Japanese regulatory models, while adopting a distinct institutional and procedural structure.

Beyond the detailed analysis of the original draft available in “The New Bill on Digital Markets in Brazil: Agents with Systemic Relevance and Possible Obligations”^[1], the comparative table appended to this article identifies the principal changes introduced by the substitute bill^[2].

2. Structural Changes

The Substitute Bill preserves the core feature of the original proposal: the incorporation into Law No. 12,529/2011, the Brazilian Competition Law, of a specific regime applicable to digital markets. While the original text already established a specialized body within the Administrative Council for Economic Defense (CADE) – initially named the Superintendence of Digital Markets (SDM) – the Substitute Bill renames it the Special Superintendence for Systemic Relevance, Free Competition, and Consumer Protection in Digital Markets (hereinafter “SRLC”). Although the Substitute Bill modifies certain elements of the proposed institutional structure, it maintains a dedicated framework for the designation and regulation of economic agents considered systemically relevant in digital markets. CADE would remain responsible for administering and enforcing the new regime through a specialized internal structure.

The Substitutive Bill also authorizes the establishing of a Digital Markets Competition Advisory Council to support CADE in matters relating to competition in the digital economy. At least half of the Council’s members must represent academic, scientific or research institutions, or nonprofit civil society organizations engaged in competition, the digital economy, consumer protection, digital rights or innovation. The Council’s statements, recommendations and reports would not be binding on CADE. Accordingly, the Council would have an advisory role, while decision-making authority would remain with the agency.

3. Regulatory governance: mechanisms for accountability, public participation, and technical improvement.

The Substitute Bill also modifies the regulatory governance provisions contained in the original proposal. New Article 87-J requires CADE to establish participatory mechanisms in proceedings and procedures relating to digital markets. These mechanisms may include public consultations, public hearings, technical meetings, expert opinions and submissions from interested parties. By upgrading these tools, the bill formally binds CADE to a participative ex-ante rulemaking process, similar to that of a traditional regulatory agency. The provision also requires participants to disclose their economic, institutional or representative interests, as well as relevant relationships, funding arrangements or other forms of support connected with their participation.

In parallel, the bill provides for appropriate channels and procedures for the receipt and confidential handling of information, in compliance with legal confidentiality requirements. The text recognizes that the effectiveness of public participation depends on the ability to submit relevant technical, economic, and commercial information without compromising the protection of trade secrets and sensitive data.

The Substitute Bill also creates a digital market analysis procedure under Article 87-K. This non-enforcement procedure would allow CADE to assess the competitive dynamics of digital markets, ecosystems, services, or activities. It may be used to identify characteristics, trends, and factors that could affect competition; inform designation proceedings; guide the establishment, review, or revocation of specific obligations; and evaluate the effectiveness, proportionality, and competitive effects of measures already imposed. In this way, the Substitute Bill adds a tool for continuous regulatory learning to the Brazilian framework.

The Substitute Bill states that its conclusions do not, by themselves, result in the designation of an economically significant agent, the imposition of special obligations, or the application of sanctions.

The Substitute Bill also provides that a digital market analysis is not a mandatory preliminary stage, an admissibility requirement or a condition for initiating designation or special-obligation proceedings. CADE may therefore initiate such proceedings without first completing a market analysis.

4. Designation and Imposition of Special Obligations: Highlights

The Substitute Bill maintains, in general terms, the three-tiered procedural system already established in the original bill: the process for designating systemically important economic agents, the process for establishing special obligations, and the sanctioning process for any noncompliance with those obligations.

However, significant changes have been introduced, notably:

(i) designation decisions and special obligations must refer to specified digital products, services or categories;

(ii) the requirement to notify all transactions involving systemically relevant agents is replaced with an information obligation for certain non-notifiable transactions;

(iii) CADE is required to comprehensively analyze and weigh all the qualitative designation criteria during its assessment; and

(iv) the list of prohibited practices (negative obligations) was expanded to include rules against “dark patterns,” expressly forbidding interface designs or operations that subvert user autonomy, decision-making, or free choice.

Accordingly, the Substitute Bill clarifies that designation does not automatically result in the imposition of special obligations. Substantive obligations must be established in a separate proceeding. As a result, designated economic agents would not necessarily be subject to the same obligations. CADE would determine, in each proceeding, which obligations apply to the products, services or categories covered by its decision. This shift is consistent with the international trend toward tailor-made regulation, most explicitly observed in the UK’s Digital Markets, Competition, and Consumers Act. This approach also aligns with the European and Japanese models, which–despite their different institutional architecture–link regulatory oversight to previously defined services, categories, or functionalities.

The Substitute Bill also requires designation decisions to identify the products, services or digital platforms relevant to the designation. The Special Superintendence’s preliminary position must indicate, even on a preliminary basis, the products or services that support the proposed designation. CADE’s Tribunal must identify in its final decision both the factual grounds for designation and the products or services associated with those grounds.

Although the designation continues to apply to the whole economic group, this requirement introduces a key element of material limitation, reducing the risk that systemic relevance will be asserted in an overly abstract manner. A practical example of this dynamic can be seen in the DMA: while the European Commission designated Apple’s entire corporate group as a gatekeeper, its actual regulatory interventions strictly target specific services, such as App Store, that serve as important gateways. Consequently, adjacent services within the group, such as Apple Maps and Apple Adds, are excluded from the scope of obligations^[3].

The same occurred with Microsoft^[4]: while the corporate group is designated as a gatekeeper, its strict ex-ante obligations are legally confined to its specifically identified Core Platform Services (CPS)–namely, Windows and LinkedIn. Other prominent services within Microsoft’s ecosystem, such as Bing, Edge, and Microsoft Advertising, were explicitly excluded from designation.

In sharp contrast, under the German model set forth in § 19a of the GWB, the designation applies to the entire economic group and encompasses various activities within its ecosystem, even when not all of them, taken individually, were decisive in establishing its significance. Thus, services such as iCloud, Apple Music, and Apple TV+, in the case of Apple; or Prime Video, Amazon Music, and Audible, in the case of Amazon, may remain subject to further action by the Bundeskartellamt due to the broad designation applied. Under the proposed wording for the Brazilian model, these services would tend to fall outside the initial scope if the designation decision identified only, for example, iOS and the App Store, or Amazon Marketplace as the applicable products or services. Their inclusion would therefore require specific justification regarding the relevance of each service; a mere connection to the same economic group would not be sufficient.

4.1. Designation of a systemically relevant agent

The Substitute Bill retains the main quantitative parameters of the original bill: total worldwide annual revenue exceeding R$ 50 billion or annual revenue in Brazil exceeding R$ 5 billion. The innovation lies in the provision for annual adjustment of these amounts in line with the IPCA index, which provides greater stability over time for the thresholds and reduces the risk of regulatory lag.

With regard to the qualitative criteria, the Substitute Bill preserves the logic of multifactorial analysis but reorganizes the criteria to emphasize operations in multi-sided markets, network effects, integration into digital ecosystems, dependence on third parties, access to and combination of relevant data, and acting as an access controller.

Another important change concerns the period of validity and revision of the designation. The period of valid designation is reduced from ten to six years, and the Substitute Bill now expressly provides for the possibility of a review two years after the CADE Court’s decision, through a new administrative proceeding, when there are significant changes in the market that indicate a material change in the competitive conditions that justified the designation. This provision is well-suited to the dynamics of digital markets, where cycles of innovation, market entry, expansion, or the loss of relevance of certain services can rapidly alter the competitive position of market participants.

4.2. Imposition of Special Obligations on Systemically Relevant Agents

In the process of establishing special obligations, the Substitute Bill reinforces the requirement of proportionality. CADE must consider innovation, particularly with regard to small businesses, and the public interest associated with the competitive development of digital markets. These new parameters aim to prevent excessive intervention, especially when a regulatory obligation may affect legitimate functions and innovative business models.

The Substitute Bill also improves legislative technique by organizing special obligations into three categories:

(i) obligations related to transparency, information, and reporting;

(ii) positive obligations; and

(iii) obligations of abstention.

This systematization makes the framework more comprehensible and helps to define the regulatory provisions to be imposed in each case.

Among the substantive changes, one that stands out is the replacement of the mandatory filing of all mergers carried out by systemically relevant agents with a solely informative obligation. This obligation would apply to those transactions that do not meet the legal criteria for mandatory notification to CADE. This solution preserves transparency regarding strategic moves by designated entities, while avoiding overburdening the competition authority with mandatory notifications of transactions with low anti-competitive potential. Crucially, this informative system operates alongside CADE’s call-in powers, which allow the authority to demand formal review of any transaction if competition concerns arise.

Regarding obligations, the Substitute Bill adds a new ground for abstention, related to the deterioration of the conditions or quality of services provided to business or end users who exercise their rights that arise from special obligations. Furthermore, it also prohibits the designated agent from making it excessively difficult to exercise such rights, including through non-neutral design choices or interfaces capable of undermining users’ decision-making autonomy. This provision addresses contemporary concerns regarding regulatory avoidance practices, manipulative design, and the real-world weakening of the effect of legally guaranteed rights.

5. Voluntary Proposals of Special Obligation

The Substitute Bill also introduces a voluntary proposal mechanism, enabling the party targeted by the proceedings to proactively shape its special obligations. The proposal may include an implementation plan, technical parameters, operational measures, monitoring mechanisms, compliance timelines, or other measures designed to ensure the law’s objectives are met. Although non-binding, this mechanism fosters technically calibrated and realistic solutions, steering the procedure toward co-regulation and regulatory dialogue. Crucially, unlike the Terms of Commitment to Cease (TCC)–which are reactive instruments designed to resolve investigations into alleged anticompetitive conduct– this mechanism is entirely preventive. It operates independently of any suspected antitrust violations, serving solely to help design, adapt, or refine ex-ante obligations.

6. Simultaneous processing of the designation and obligation-imposition proceedings.

The original bill permitted designation proceedings and special-obligation proceedings to be processed simultaneously. The Substitute Bill retains this possibility but requires a reasoned finding of urgency related to the promotion or protection of competition. Accordingly, CADE would need to provide a specific justification before combining the two proceedings. In the absence of such urgency, designation and the imposition of special obligations would proceed separately.

7. Deadlines and Procedures

Finally, the Substitute Bill revises the procedures for designating a relevant agent and establishing special obligations.

Accordingly, CADE would need to provide specific justification before combining the two proceedings. In the absence of such urgency, designation and the imposition of special obligations would proceed separately. A complaint filed by the Secretariat for Economic Monitoring (SEAE), or by any federal government agency or entity with jurisdiction over digital markets or the protection of diffuse and collective rights, will trigger the immediate initiation of an administrative proceeding.

After initiation, the respondent will be notified to file a response within thirty days, which may be extended by up to ten days.

In the specific case of a designation, the initiation of the proceeding will be accompanied by the opening of a call for input, also for a period of thirty days, allowing third parties to submit contributions since the beginning of the investigation. Once the statements have been received, the SRLC may forward the case directly to the Court if it deems further investigation unnecessary, or it may order additional investigative measures. Upon completion of the investigation, the SRLC must publish a preliminary opinion, which will be subject to a public hearing before the final opinion is drafted and the case file is forwarded to the Court.

Regarding procedural deadlines, the Substitute Bill distinguishes between designation proceedings and proceedings to establish special obligations. In designation proceedings, any supplementary investigation must be completed within 30 days–a non-extendable period; whereas in proceedings to establish special obligations, this deadline may be extended once for an equal period. The bill also increases the maximum deadline for the automatic referral of case files to CADE’s Tribunal from 180 days to 210 days for designation or review of designation proceedings, and to 240 days for the establishment or review of special obligations. Once at the Tribunal, the reporting commissioner must place the case on the court’s agenda within 60 days in the case of designation, and within 120 days in the case of the establishment of special obligations. The Substitute Bill also regulates requests for viewing, limiting them to 30 days, granting them collective status, and requiring the automatic inclusion of the rapporteur’s vote in the subsequent session.

8. Noncompliance proceedings and sanctions

The Substitute Bill retains the provision for a specific administrative proceeding to investigate noncompliance with the special obligations imposed on systemically relevant agents in digital markets. It also limits CADE’s supplementary regulatory authority regarding deadlines and procedures. The bill states that supplementary regulations may not establish new obligations, sanctions or designation criteria beyond those provided by law.

Noncompliance with these special obligations may result in the application of the penalties already provided for in Law No. 12,529/2011 for violations of economic order, including fines ranging from 0.1% to 20% of gross revenue, as well as a daily fine in the event ongoing infractions.

Additionally, the Substitute Bill introduces continuous monitoring mechanisms, including the periodic submission of compliance reports by designated agents and the option to engage, at the company’s expense, an independent auditor selected or approved by CADE. As a result, the regime combines enforcement through sanctions with typical regulatory compliance tools.

****

^[1] MOTTA, Ricardo; DRUMMOND, Luiz Felipe. The New Bill on Digital Markets in Brazil: Agents with Systemic Relevance and Possible Obligations. [S. l.]: Grinberg Cordovil Advogados, 18 set. 2025. Disponível em: https://gcalaw.com.br/the-new-bill-on-digital-markets-in-brazil-agents-with-systemic-relevance-and-possible-obligations/.

^[2] Available at: APPENDIX – BILL 4.675 (4)

^[3] EUROPEAN COMMISSION. Commission decision of 23 April 2025 designating Apple’s iPadOS as a core platform service pursuant to Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector. Case DMA.100014. Brussels: European Commission, 2025. Disponível em: https://ec.europa.eu/competition/digital_markets_act/cases/202612/DMA_100014_163.pdf

^[4] EUROPEAN COMMISSION. Commission Decision of 5 September 2023 designating Microsoft as a gatekeeper pursuant to Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector (Cases DMA.100015 – Online search engines; DMA.100028 – Web browsers; DMA.100034 – Online advertising services). Brussels: European Commission, 2023. Disponível em: https://ec.europa.eu/competition/digital_markets_act/cases/202416/DMA_100015_700.pdf

O conteúdo Deputy Aliel’s Substitutive Draft of the New Bill on Digital Markets in Brazil: scope restriction, social contribution, and voluntary agreement. aparece primeiro em Grinberg Cordovil Advogados.

The first measure took effect on July 22, 2026, imposing an additional 25% tariff on certain products originating in Brazil. The measure represents the outcome of an investigation initiated by the United States Trade Representative (USTR) on July 15, 2025, based on Section 301 of the Trade Act of 1974, aimed at investigating Brazilian practices that allegedly restrict U.S. trade. Several products were excluded from the scope of the measure, including certain agricultural and food products, coffee, fuels and minerals, precious metals, computers, pharmaceuticals, and aeronautical items. Products already subject to sector-specific tariffs imposed under Section 232 of U.S. law also remained excluded.

The second measure, implemented on July 23, 2026, stems from an investigation aimed at determining alleged shortcomings in preventing and combating forced labor. According to the U.S. authority, Brazil and 53 other economies have neither established nor adequately enforced mechanisms to prohibit these practices. As a result, an additional tariff of 12.5% was proposed on imports from these countries.

Taken together, the two measures raise the surcharge on a portion of Brazilian exports to 37.5%. The sectors most affected include footwear, machinery and equipment, parts and components, apparel, and certain chemical products.

The Brazilian government contested the findings of both investigations, arguing that the grounds presented by the USTR do not justify the imposition of tariffs. In response to the 25% tariff, it announced the initiation of the procedures provided for in the Economic Reciprocity Act (Law No. 15,122/2025). The eventual adoption of countermeasures, however, will depend on the conclusion of the administrative proceeding and the deliberations of the Interministerial Committee on Negotiations and Economic and Trade Countermeasures. In addition, the Brazilian government announced that it would file a complaint with the World Trade Organization (WTO) to challenge the measures.

Given the recent performance of bilateral trade, the United States was the second-largest destination for Brazilian exports in 2025, accounting for approximately 11% of Brazil’s total export value. Although the macroeconomic impact on the Brazilian economy is likely to be limited, the sectoral and regional effects could be significantly more pronounced, since the surcharges are concentrated on certain industrial segments, affecting more intensely regions whose economic activity depends on these sectors.

O conteúdo The U.S. imposes new tariffs on Brazilian products, and Brazil files a complaint with the WTO aparece primeiro em Grinberg Cordovil Advogados.

On June 16, 2026, GECEX Resolution No. 906/2026 was published, which, among other matters, addresses public interest interventions of a political nature. Although this provision already existed in Decrees No. 8,058/2013 and No. 10,839/2021, which regulate the application of antidumping and countervailing measures, respectively, GECEX Resolution No. 906/2026 clarifies the existence of this possibility and establishes that such interventions must be duly justified. In this context, GECEX has the authority to suspend or reduce trade defense measures recommended by the Department of Trade Defense and Public Interest (Decom). These interventions may be subject to a request for reconsideration, first submitted to GECEX and, if the decision is not revised, to the Strategic Council of the Foreign Trade Chamber.

In addition, GECEX Resolution No. 906/2026 also stipulates that it is the responsibility of the Foreign Trade Chamber’s Committee on Trade Defense and Public Interest to discuss and seek clarification on proposals for intervention in trade defense measures in cases where a public interest review proceeding is underway—a scenario that may also justify public interest interventions in trade defense decisions.

The Internal Rules of Procedure for this Committee were published on June 25 via GECEX Resolution No. 922/2026. The Committee does not have a deliberative function, but is an integral part of the CAMEX structure designed to support the decision-making process of the CAMEX Strategic Council and GECEX on matters of trade defense and public interest. It is composed of representatives of the members of the CAMEX Executive Management Committee.

The Rules of Procedure divide the Committee’s responsibilities into two main areas. With regard to trade defense, Article 2 provides that the Committee may examine, debate, and seek clarification on recommendations concerning the imposition, extension, modification, suspension, or resumption of antidumping and countervailing duties, safeguard measures, and price undertakings, as well as other measures related to the administration, implementation, and collection of trade defense measures.

With regard to matters of public interest, Article 3 provides that the Committee may analyze recommendations concerning, among other issues, the suspension of the enforceability of definitive antidumping and countervailing duties, the non-imposition of provisional duties, the imposition of duties at levels different from those recommended in trade remedy investigations, the approval of price undertakings, the reinstatement of suspended measures, and requests for reconsideration or administrative appeals related to these matters.

Resolution No. 922/2026 also establishes internal deadlines for the Committee’s operations, particularly in Articles 10 and 11 of the Internal Rules of Procedure. In addition to the rules on convening and holding meetings, Article 11 provides that matters submitted to the Committee for consideration must be supported by opinions, technical notes, or equivalent documents. Article 13, in turn, provides for the publication on the CAMEX website of the tentative annual meeting schedule, the actual dates of the meetings held, and a record of the topics discussed.

According to the Rules of Procedure, the Committee’s meetings shall be confidential, and preparatory documents, recommendations, reports, and discussions may not be disclosed prior to the adoption of the relevant administrative acts by the decision-making authorities.

O conteúdo New Resolutions Regulating Trade Remedy and Public Interest Procedures aparece primeiro em Grinberg Cordovil Advogados.

The USTR (Office of the United States Trade Representative), the U.S. trade authority, has published new updates regarding the investigation conducted under Section 301 of the Trade Act of 1974 against Brazil. The investigation was initiated on July 15, 2025, and covers Brazilian practices related to digital trade and payment methods, including Pix, preferential tariffs, anti-corruption practices, intellectual property, access to the ethanol market, and illegal deforestation.

On June 1, 2026, the USTR concluded that certain Brazilian practices were unreasonable or discriminatory and would burden or restrict U.S. trade. As a result, it proposed imposing an additional 25% tariff on all goods originating in Brazil. The proposed measure has broad application, covering all Brazilian products, except for those expressly excluded in the report. Among the excluded products are, for example, beef and beef offal; vegetables and fruits; coffee; teas and spices; food preparations and beverages; minerals, ores, and fuels; metals and precious stones, such as gold, silver, platinum, palladium, and rhodium; computers and parts; and certain aeronautical items, such as aircraft engines, parts, and components.These products were excluded because they are considered strategic by the U.S. government.

The next milestones in the investigation focus on the public consultation phase: the deadline for requests to participate in the hearing was June 22, 2026; written comments may be submitted until July 1, 2026; and the public hearing will take place on July 6, 2026.

At the same time, there is an investigation into forced labor, launched on March 12, 2026, covering 60 countries, including Brazil. On this front, the USTR is assessing the absence or inadequacy of bans on the import of goods produced, in whole or in part, using forced labor.

On June 2, 2026, the USTR proposed an additional 12.5% tariff on products from the economies under investigation, including Brazil. Requests to participate in the hearing are also due by June 22, 2026; written comments must be submitted by July 6, 2026; and the hearings will begin on July 7, 2026, with an additional five-day period following the last day of the hearings for rebuttal comments.

These timelines indicate that the adoption of measures against Brazil could be formalized as early as the second half of this year, and in the worst-case scenario, they would amount to an additional 37.5% tariff.

O conteúdo U.S. Proposes Additional Tariffs on Brazilian Products Under Investigation Under Section 301 aparece primeiro em Grinberg Cordovil Advogados.

1. 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.

2. 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.

3. 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.

4. 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.

O conteúdo Brazilian Ministry of Finance Proposes New Regulatory Framework for Digital Platforms aparece primeiro em Grinberg Cordovil Advogados.

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.

O conteúdo The Cloud Gaming market and CADE´s mismatch with the FTC and CMA aparece primeiro em Grinberg Cordovil Advogados.

O conteúdo ANPD selects experts to discuss Simplified Registration of Personal Data Processing Operations aparece primeiro em Grinberg Cordovil Advogados.

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.

O conteúdo CADE and the Economic Freedom Law aparece primeiro em Grinberg Cordovil Advogados.

O conteúdo CADE regulates the sharing of Technical Notes with Public Prosecutors aparece primeiro em Grinberg Cordovil Advogados.