Brazil: Dominance and Unilateral Conduct

Brazil: An Overview of Dominance and Unilateral Conduct

Brazil has a relatively young competition law system 1 and the Brazilian competition authorities tend to watch developments in more mature jurisdictions with interest, seeking to learn from their experience and policy choices. It seems appropriate, therefore, in view of the ongoing debate on unilateral conduct at international level, to reflect on whether and how this debate has impacted or may impact the approach to dominance and unilateral conduct issues in Brazil.

Under Brazilian Law, a company is deemed to occupy a dominant position if it 'controls a substantial part of a relevant market'. The law also states that a dominant position is presumed to exist if a company - or group of companies - holds a market share equal to or greater than 20 per cent of a relevant market. 2 This is a rather low threshold for presuming market power if compared to other jurisdictions, and suggests that, in principle, a great number of companies could be deemed to hold a dominant position - and therefore subject to investigation for abuse. 3

Although in the last decade Brazilian authorities have devoted most of their enforcement resources to fighting cartel behaviour, an increasing number of cases involving unilateral conduct have been or are being examined by the Brazilian authorities. Most of these cases were brought before the competition authorities by third parties, usually by competitors of the companies investigated. Moreover, although it is possible under Brazilian law to challenge anti-competitive behaviour directly before the courts, 4 this is still unusual, and the cases are mostly discussed in the context of administrative proceedings reviewed by the competition authorities. 5

This article provides an overview of unilateral conduct issues in Brazil, with a focus on exclusionary conduct. It outlines the general legal framework for unilateral conduct and makes reference to selected cases that exemplify some instances where exclusionary conduct is being discussed in Brazil.

Overview of the legal framework

Brazilian Competition Law: General

Law No. 8,884/94 is the main statute governing competition law issues in Brazil. It contains merger control provisions, as well as provisions aiming at investigating and repressing anti-competitive conduct.

Assessment of the legality of commercial practices follows the system laid down by articles 20 and 21 of Law No. 8,884/94. Article 20 states that any act in some way intended or otherwise able to produce certain effects, will be deemed a violation of the economic order. These effects are:

• to limit, restrain or in any way harm competition or free enterprise;

• to control relevant markets of certain products or services; 6

• to arbitrarily increase profits; and

• to abuse one's dominant position.

In its turn, article 21 contains a non-exhaustive list of examples of practices that may constitute a violation of the law, if they are able to produce any of the effects outlined under article 20. Even if a practice is not listed under article 21, it may still characterise a violation if it is capable of producing any of the effects listed in article 20.

Except for cartel behaviour, Law No. 8,884/94 does not contain any prohibition per se with respect to any type of conduct. 7 It does not classify the acts or conduct that should be considered a violation of the law under formal categories, but rather defines their legality based on their effects. While this approach is appropriate in view of the dynamic and evolving nature of commercial relations and practices, it implies a certain degree of uncertainty as to what constitutes anti-competitive behaviour. CADE Resolution No. 20/1999, in its Appendices I and II, contains guidelines on criteria and methodology for examining anti-competitive conduct. The resolution does not have a normative nature and has been partially revoked, 8 but its appendices are referred to as guidance in authorities' examinations of anti-competitive behaviour.

Dominance

As indicated, article 20, paragraph 2, states that a company is deemed to hold a dominant position if it 'controls a substantial part of a relevant market'. Article 20, paragraph 3, indicates that a dominant position is presumed to exist if a company (or group of companies) holds a market share equal to or greater than 20 per cent of a relevant market. In addition to the market share criteria, other elements are usually taken into account in assessing the existence of a dominant position, such as entry barriers, competitors' shares, buyers' power and the degree of rivalry in the market, among others. These elements are not expressly addressed under Law No. 8,884/94 as indicating dominance, but they are referred to in the appendices to CADE Resolution No. 20/1999, and are mentioned in academic writings and in competition authorities' opinions and decisions on such cases. On occasion, in assessing dominance, authorities have made reference to the circumstance of a company being able to 'behave to an appreciable extent independently of its competitors, customers and, ultimately, consumers', in a clear reference to the concept of dominance under European Competition law. 9

Abuse

Broadly speaking, conduct by a dominant company is considered illegal or abusive when it may cause anti-competitive effects. Any type of conduct that may somehow cause harm to competition can be caught under Law No. 8,884/94. Article 21 lists types of conduct that may be considered as abusive, if they are able to produce the effects stated under article 20. Article 21 describes conducts that constitute typical abuse of dominance behaviour such as refusal to deal, tying and exclusive dealing.

It is worth noting that articles 20 and 21 contain provisions that address not only exclusionary abuses, but also exploitative abuses. As to exploitative abuses, there are provisions that consider as an abuse the 'imposition of excessive prices' and the 'arbitrary increase of profits'. 10 Although the Brazilian competition authorities have reviewed cases involving allegations of excessive pricing, to date they have never found a violation on such grounds. In spite of being expressly listed as a type of anti-competitive practice under article 21 of Law No. 8,884/94, the Brazilian authorities have concluded in most of these cases that this type of conduct would only constitute a violation when associated with other anti-competitive practices. 11 Imposition of excessive prices and the arbitrary increase of profits are, thus, controversial aspects of Law No. 8,884/94 and will not be further discussed in this article.

Anti-competitive effects

Law No. 8,884/94 does not specify what it considers as being harm to competition. CADE Resolution No. 20/1999, Appendix I, suggests that the anti-competitive effects that may derive from vertical anti-competitive conduct include, among others, 'the creation of mechanisms that exclude rivals, by increasing entry barriers for potential competitors, or by increasing costs for effective competitors'. In the cases of exclusionary conduct brought before the competition authorities, foreclosure is usually the main anti-competitive effect examined. However, based on existing case law, it is not possible to assess levels of foreclosure that would be considered as anti-competitive, nor levels of foreclosure below which one might say there would be 'safe harbours'.

Efficiency considerations

As indicated above, Law No. 8,884/94 does not contain any prohibition per se with respect to any type of conduct (except for cartel behaviour). A dominant company may raise efficiency arguments to justify conduct alleged as being abusive.

In examining efficiency arguments, the Brazilian competition authorities have often followed the methodology set out by CADE Resolution No. 20/1999, 12 whereby the authorities will examine whether or not a certain conduct has anti-competitive effects; if it entails any efficiencies; if these efficiencies are applicable to the specific case being examined; and, finally, if they outweigh the harmful effects caused by the conduct. 13

CADE Resolution No. 20/1999 14 expressly lists as potential efficiencies arguments relating to transaction costs economics and the avoidance of free-rider problems. Some of these arguments have been made in cases brought before the competition authorities, but have yet to be sufficiently tested. In some cases, the Brazilian competition authorities have indicated that, although the argument was plausible in theory, it did not fit the facts of the case and, therefore, could not be accepted as an efficiency justification. 15 Broadly speaking, the authorities are open to accepting efficiency arguments, although the company investigated must show that these are applicable to the specific circumstances of the cases in point, and that they outweigh the anti-competitive effects.

Selected cases on exclusionary conduct by dominant companies

The majority of the cases examined by the authorities on unilateral conduct refer to exclusionary conduct. Cases brought before the Brazilian competition authorities have involved various types of claims, such as refusals to deal, 16 combination of non-competition and exclusivity provisions, 17 predatory pricing, 18 tying arrangements and exclusive dealing. Many of the more recent cases involve exclusive-dealing types of claims, including traditional exclusive dealing, de facto or incentive-based exclusive dealing, freezer exclusivity, 19 promotional exclusivity and exclusive display of products at retail premises. 20 Many of these cases are still being either examined by the Brazilian competition authorities or challenged in courts.

The paragraphs that follow contain a brief description of recent cases investigated by the Brazilian authorities in connection with unilateral exclusionary conduct. The cases have been selected merely for the purpose of exemplifying the types of discussions ongoing in Brazil. It is not the authors' purpose in this article to convey their opinions as to whether authorities' findings in these cases were properly grounded or mistaken. The description of the cases is made based on publicly available information.

Classic exclusive dealing

In June 2008, CADE rendered a decision on an exclusive dealing case involving the market for mobile telephone services and sets. 21 The case originated from a claim filed by mobile telephone operator Telet against its competitor Celular CRT. Telet argued that CRT had executed exclusive dealing agreements with various distributors/dealers, which had the effect of creating obstacles to access by competitors to relevant distribution channels in the state of Rio Grande do Sul. CADE decided that the case should be dismissed, on the grounds that there was no evidence of sufficient market foreclosure resulting from the exclusive dealing agreements. In a split judgment, three commissioners considered the practice as being anti-competitive, while two commissioners and the president of CADE considered that the fact of retailers being bound to one company could only be deemed illegal if other competitors lacked reasonable alternatives to distribute their products. The president of CADE used her casting vote to resolve the deadlock, resulting in a four-to-three judgment in favour of the defendant company.

The case is relevant for two main reasons. Firstly, because CADE stressed the importance of showing sufficient market foreclosure for purposes of considering the conduct to be illegal. The president of CADE indicated in her casting vote that she was not convinced that there had been sufficient market foreclosure based on the information available. There was some controversy as to the level of foreclosure caused by the exclusive dealing agreements and the methodology used for its calculation.

Secondly, the case is interesting because, during examination by the authorities, certain exclusive dealing agreements executed by CRT with retailers were being discussed before the courts. The judicial discussions involved claims by CRT against two retailers who had failed to honour the exclusive dealing obligations contained in distribution agreements. CRT filed lawsuits seeking termination of the agreements and payment of penalties for breach of contract. In both cases, the retailers argued that the agreements were anti-competitive and therefore that the exclusive dealing provisions were not enforceable. Both cases were decided in favour of CRT, as the courts considered the exclusive dealing provisions to be legal and therefore enforceable. 22 Although the court decisions did not deeply examine the arguments concerning the effects of exclusive dealing agreements on competition, nor address efficiency considerations, the fact that they were brought directly before the Brazilian courts may indicate that judicial discussions on competition law issues may increase in the years to come, as a result of greater awareness of competition law in general on the part of the business and legal communities.

Loyalty programmes and incentive-based exclusivity

In 2009, CADE rendered an important decision in an investigation of abuse of dominance in the Brazilian beer market. The investigation originated from a complaint filed by brewer Schincariol, claiming that rival AmBev engaged in various anti-competitive practices, with the purpose of inducing retailers to sell AmBev beer brands exclusively. 23 Among other aspects, Schincariol claimed that AmBev adopted a points-awarding programme that contained a type of 'score system', whereby retailers would obtain certain prizes and discounts based on their sales of AmBev brands. Schincariol claimed that such a programme was fidelity-inducing and that it was difficult for retailers to refuse to join it, given that, according to Schincariol, AmBev held a dominant position in the market and owned the leading beer brands. After an extensive investigation, which involved inspections at the premises of the defendant company and the presentation of economic studies, CADE concluded that, although exclusivity was not expressly stated in AmBev's programme, AmBev closely monitored the performance of the retailers and the programme involved a commitment by retailers not to sell competing brands, limiting retailers' ability to trade with competing manufacturers. According to CADE, the programme, in practice, had the effect of an exclusivity commitment and of limiting the sale of rivals' brands. In conclusion, CADE decided that AmBev had abused its dominant position and ordered AmBev to terminate the programme. As a result, CADE imposed a fine of 2 per cent of AmBev's total revenues in Brazil in 2002, which amounted to 353 million reais and was the largest fine ever imposed in Brazil in an administrative proceeding. Following CADE's decision, AmBev filed a judicial challenge against said decision and the case is still to be decided by the Brazilian courts.

Settlements

It is worth mentioning that, on occasion, defendant companies have reached settlements with the Brazilian competition authorities to put an end to investigations involving claims of abuse of dominance. Therefore, in some cases, CADE ended up not rendering decisions addressing the issues discussed. 24 The settlements usually involve some type of undertaking on behaviour by the company investigated. They do not imply a confession of the facts by the company investigated, nor recognition of illegality of conduct. 25 In one of these cases, for example, the defendant company reached a settlement with CADE, whereby it undertook, among other aspects, not to execute exclusive dealing agreements with certain retailers or distributors, and not to create obstacles for retailers that wished to sell and/or expose competing brands for a certain period of time. In view of the settlement, CADE did not address the claims of anti-competitive foreclosure made by the claimant or the efficiency arguments raised by the defendant. 26

A more recent case was settled by investigated parties in the payment/credit cards market. The case involved an exclusive agreement between payment/credit cards company Visa and its respective payment processor Cielo (formerly VisaNet) to provide businesses with the payment transmission equipments and services to accept Visa payment/credit cards. According to the SDE, this agreement would limit competition in the payment/credit cards market and potentially preclude the entry of new competitors that might contest the dominant position supposedly held by Cielo. The companies negotiated settlement agreements with CADE and agreed to terminate the exclusive contracts and share the payment processing systems with other card brands to put an end to the investigation. 27

It should be noted that, under the existing framework for settlements, CADE may require as a condition for the settlement that the settling parties pay financial compensation that will revert to the Fund for the Defence of Diffuse Rights. Unlike settlements in cartel cases, however, in which payment of a financial compensation is mandatory, settlements in unilateral conduct cases do not necessarily require such payment of the compensation, at CADE's discretion. In at least one recent case involving unilateral conduct, however, CADE has required the company settling to pay financial compensation. 28

The Bill of Law to reform the Brazilian competition defence system

It is worth noting that, at the time of writing, a bill of law is pending before the Brazilian Congress that proposes changes to Law No. 8,884/94 and, in wider terms, to the Brazilian competition defence system. The main changes proposed involve

• unification of the three existing competition authorities into a single one, which would supposedly bring more efficiency to the system and avoid overlapping functions;

• the introduction of a pre-merger review system; and

• boosting the current human and financial resources for competition enforcement in Brazil. 29

On the topic of dominance and abuse, the bill of law, as it stands, does not propose substantial changes and maintains an effects-based system, similar to that laid out under Law No. 8,884/94, to assess whether a conduct should be considered a violation. The bill of law proposes, though, some changes in the non-exhaustive list of conducts that might be considered violations. The main changes concerning abuse of dominance are:

• the elimination of abusive pricing as a type of violation (which would be consistent with current competition case law on this matter); and

• the inclusion, as types of violation, of the abusive exercise or exploitation of intellectual property rights, among others.

The bill of law is now pending approval by the Brazilian Senate. Although there is an expectation that the bill should be approved soon, there is still some uncertainty as to when the bill will actually pass and come into force.

***

Law No. 8,884/94 contains broad provisions as to what may constitute abuse of a dominant position. The existing guidelines - Appendices I and II of CADE Resolution No. 20/1999 - serve as general guidance on the methodology to be used by authorities in examining cases of abuse of dominance. While useful, these guidelines are not binding and do not include recent discussions on how to assess anti-competitive effects, nor do they contain detailed considerations on acceptable and more sophisticated efficiency arguments. Except for the market share threshold defining the presumption of dominance at 20 per cent (which may be challenged), neither the guidelines nor case law provide sufficient information on aspects that may suggest more precisely when conduct by dominant companies is abusive. Analysis of competition case law in Brazil reveals that examination by the authorities will probably be influenced by discussions currently underway, mainly in Europe and the USA, and it is likely that existing and potential claimants and defendants will also seek inspiration from international developments when presenting their respective arguments. Although the focus of the Brazilian authorities remains on the prosecution of cartels, the record fine imposed in a case involving abuse of dominance demonstrates that the Brazilian authorities are also interested in repressing these types of behaviour. Therefore, companies with business in Brazil may wish to follow these developments closely and include issues involving abuse of dominance in their antitrust compliance programmes.

Notes

1
. The main statute governing competition law issues in Brazil is Law No. 8,884/94, dated 11 June 1994. Although Brazil has had statutes governing competition law since 1937, it is fair to say that the country has only had an effective competition law system since the enactment of Law No. 8,884/94.

2
. Article 20, 2nd paragraph, of Law No. 8,884/94: A dominant position occurs when a company or group of companies controls a substantial part of a relevant market, as supplier, intermediary, purchaser or financier of a product, service or related technology. According to article 20, 3rd paragraph, of Law No. 8,884/94, a dominant position is presumed to exist when a company or group of companies controls over 20 per cent of a relevant market, although this percentage may be amended by CADE for specific economic sectors.

3
. Under article 23 of Law No. 8,884/94, if the competition authorities find a company guilty of having abused its dominant position, it may be subject to fines ranging from 1 per cent to 30 per cent of gross turnover in the latest financial year, in addition to other penalties.

4
. Article 29 of Law No. 8,884/94 states that parties who feel harmed by anti-competitive conduct may file claims before the courts seeking the cessation of anti-competitive practices and damages resulting therefrom. The judicial claim is independent from the administrative proceedings. In addition, claims involving abuse of dominance issues may be filed based on other statutes.

5
. There are three agencies primarily responsible for the enforcement of competition law issues in Brazil, namely the Secretariat of Economic Monitoring (SEAE ) of the Ministry of Finance, the Secretariat of Economic Law (SDE ) of the Ministry of Justice and the Administrative Council for Economic Defence (CADE ). The SDE is the main investigatory agency, although the SEAE also has an investigatory role and may issue opinions on investigations involving anti-competitive conduct. CADE is the decision-making entity and is not bound by the recommendations or findings of either the SEAE or SDE.

6
. Under paragraph 1 of article 20, the control of relevant markets of certain products or services is not considered illegal when it is explained by a natural process based on superior efficiency of the economic agent in relation to its competitors .

7
. Although the law does not make this distinction, as a matter of practice, cartel behaviour has been regarded by Brazilian competition authorities as a violation per se.

8
. CADE Resolution No. 20/1999 was revoked by CADE Resolution No. 45, dated 28 March 2007, but its appendices continue to be used as guidance.

9
. See, for example, vote by CADE Commissioner Roberto Pfeiffer, dated 2 July 2003, in Administrative Proceeding No. 08012.009991/98-82. Defendant: Participações Morro Velho Ltda.; Claimant: Condomínio Shopping Center Iguatemi and Shopping Centers Reunidos do Brasil SA. Decision date: 2 March 2004.

10
. See article 20, item III, and article 21, item XXIV, of Law No. 8,884/94.

11
. See, among others: Preliminary Investigation No. 08012.001366/2009-15 (Claimant: Federal General Attorney's Office in the State of Minas Gerais; Defendants: Gol Transportes Aéreos S.A. and Tam Linhas Aéreas SA); Preliminary Investigation No. 08012.000295/1998-92 (Claimant: Federation of the Mechanical, Metallurgical and Electrical Industry of Ipatinga MG; Defendant: White Martins SA and AGA SA).

12
. Appendix II.

13
. According to the guidelines the economic efficiencies should be balanced with the potential anti-competitive effects, following a criterion of reasonableness.

14
. Appendix I.

15
. See, for example, Administrative Proceeding No. 08012.003303/98-25, in which the SDE did not accept the argument brought by a defendant that clauses of exclusive dealing included in exclusive product-display agreements were justified by the need to protect the defendant's investments in the retailer's premises, as it considered that these investments were brand-specific and not subject to opportunistic behaviour by other suppliers.

16
. Administrative Proceeding No. 53500-000359/99 (Claimant: TVA Sistema de Televisão SA; Defendants: TV Globo Ltda. and TV Globo São Paulo); Administrative Proceeding n. 08012.003048/2001.31(Claimant: Associação Neo TV and others; Defendants: Globosat Programadora Ltda and Globo Comunicações e Participações Ltda); Administrative Proceeding No. 08012.000172/98-43 (Claimant: Power-Tech Teleinformàtica Ltda; Defendant: Matel Technologia de Teleinformàtica Ltda).

17
. Administrative Proceeding No. 08012.002841/2001-13 (Claimant: Condomínio Shopping D; Defendant: Center Norte SA). Administrative Proceeding 08012.009991/1998-82 (Claimant: Participações Morro Vermelho Ltda; Defendant: Condomínio Shopping Center Iguatemi and Shopping Center Reunidos do Brasil Ltda).

18
. See, as examples: Preliminary Investigation No. 08700.00198/2008-10 and Preliminary Investigation No. 08012.00477/2004-63. Note that SEAE Ordinance No. 70, dated 12 December 2002, contains guidelines for analysis of predatory pricing practices.

19
. Administrative Proceeding No. 08012.002608/2007-26 (Claimant: Cervejaria Kaiser do Brasil S.A.; Defendants: Companhia de Bebidas das Américas, AmBev and Cervejarias Reunidas Skol Caracu SA).

20
. Administrative Proceeding No. 08012.003921/2005-10 (Claimant: CADE; Defendants: Souza Cruz S/A and Philip Morris Brasil Indústria e Comércio Ltda).

21
. Administrative Proceeding No. 53500.000502/2001 (Claimant: Telet SA; Defendant: Celular CRT SA) Decision date: 4 June 2008.

22
. See 13 July 2005 decision by the 16th Chamber of the State Court of Rio Grande do Sul, Appeal No. 70011494770. See 7 December 2006 decision by the 18th Chamber of the State Court of Rio Grande do Sul, Appeal No. 70010228575.

23
. Administrative Proceeding No. 08012.003805/2004-10 (Claimant: Primo Schincariol Indústria de Cervejas e Refrigerantes S/A; Defendant: Companhia de Bebidas das Américas AmBev).

24
. See Administrative Proceeding No. 08012.003048/2001-31 (Claimant: Neo TV; Defendant: Globosat Programadora Ltda and Globo Comunicações e Participações Ltda).

25
. Article 53 of Law No. 8,884/94.

26
. Administrative Proceeding No. 08012.003303/98-25 (Claimant: Philip Morris Brasil SA; Defendant: Souza Cruz SA).

27
. Administrative Proceeding No. 08012.005328/2009-31 (Claimant: SDE; Defendants: Visa International Association, Visa do Brasil Empreendimentos Ltda and Companhia Brasileira de Meios de Pagamentos CIELO). Settlement date: 16 December 2009.

28
. See Administrative Proceeding No. 08012.008506/1998-90 (Claimant: AELO - Associação de Empresas de Loteamento e Desenvolvimento Urbano do Estado de São Paulo; Defendant: Companhia Paulista de Força e Luz - CPFL). Settlement date: 9 June 2010.

29
. Bill of Law No. 6/2009, which is currently under the analysis of the Brazilian Senate.

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