Friday, July 12, 2019
Compliance Programs and Abuse of Dominance Under Brazilian Competition Law: A Roadmap for Compliance Monitors
Victor Oliveira Fernandes, University of São Paulo (USP) discusses Compliance Programs and Abuse of Dominance Under Brazilian Competition Law: A Roadmap for Compliance Monitors.
ABSTRACT: The Brazilian antitrust authority (Portuguese acronym CADE) has been following a worldwide trend in encouraging the adoption of competition law compliance programs. Nevertheless, one can see an apparent policy gap in the current optimal incentives for compliance program adoption in antitrust enforcement. While programs aimed to detect cartels are being increasingly rewarded with reductions in fines for antitrust infringements imposed by the competition authority, there is still little guidance on how compliance programs should be structured to detect prior and avoid abuse of dominance practices. As CADE’s approach to monopolization practices has relied on a variety of presumptions of lawfulness, this article explores three main elements that should be incorporated into an effective antitrust compliance program aimed to prevent monopolization: (i) a conservative assessment of market power; (ii) a strict and proportional standard for measuring efficiency justifications and (iii) a viable mechanism for submitting consultations to CADE’s Tribunal. From the perspective of both the business community and enforcers, competition law compliance programs should be viewed as a catalyst for improving antitrust enforcement against abuse of dominance practices.