

Brazil’s Ministry of Finance presents proposals to regulate economic and competition aspects of digital platforms
Report proposes legal and infra-legal measures for future regulations, including changes to the Brazilian Competition Defense System (SBDC) that would enhance the Brazilian Antitrust Authority's influence in this debate
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On October 10, 2024, the Brazilian Ministry of Finance’s Secretariat of Economic Reform (SRE-MF) released twelve proposals for legal and infra-legal measures to regulate economic and competition aspects of digital platforms. The proposals are contained in a report titled Plataformas Digitais: aspectos econômicos e concorrenciais e recomendações para aprimoramentos regulatórios no Brasil (‘Digital Platforms: economic and competition aspects and recommendations for regulatory improvements in Brazil’).
The report was based on an analysis of regulations issued in other countries in recent years (such as the European Union Digital Markets Act – DMA), as well as submissions from civil society and local authorities linked to a call the SRE/MF opened for contributions on the topic (Tomada de Subsidios No. 1), which took place between January and May 2024.
The report presents the Ministry of Finance’s conclusions, noting that tools provided for in the existing legislation – in particular, Law No. 12,529/2011 (the Brazilian Competition Law, or BCL) – are insufficient for handling the challenges posed by developments in the digital world. According to the Ministry of Finance, this fact would justify amending the Brazilian Competition Law to include new measures for this purpose.
Brazil’s Antitrust Authority (CADE) has also published an official statement expressing its agreement with the report’s proposals, stating they fall in line with the authority’s own submissions to the call for contributions. It stated that, in addition to the BCL, an ex-ante regulatory approach would be essential to address structural issues in the digital market.
The SRE-MF’s report
The report’s proposals are divided along two axes. Axis 1 covers proposals to change the Brazilian Competition Defense System (SBDC) and the BCL (after the due legislative process) to provide CADE with tools that supposedly allow for more effective intervention in competition issues related to so-called ‘systemically relevant platforms’ (which the report defines as ‘larger agents that control complex ecosystems with pronounced network effects’). Meanwhile, Axis 2 covers proposed infra-legal or soft law recommendations (i.e., ones that do not require legislative changes) to the application of the BCL, with the broad objective of improving existing law and CADE’s analysis procedures for promoting competition in digital markets.
Axis 1 – Proposed legislative changes to promote competition in specific cases involving systemically relevant platforms:
1. The creation of a procedure for CADE (via its Tribunal) to designate platforms as ‘systemically relevant’ based on qualitative and quantitative criteria:
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- The law would establish a list of qualitative criteria, such as the platform’s presence in multi-sided markets, market power associated with network effects, vertical integrations in related markets, and access to large volumes of personal data, among others.
- The law would establish minimum revenue criteria, both globally and in Brazil. Companies whose revenue is below the established values will be exempt from this designation (safe harbor).
2. The introduction of procedural and transparency obligations imposed on designated ‘systemically relevant platforms’, such as the prior filing of mergers with CADE, and transparency rules for end-users and professionals about important commercial information regarding the use and supply of services and products.
3. The establishment of a procedure for CADE to investigate companies designated as ‘systemically relevant platforms’, including defined substantive obligations that CADE can impose on a case-by-case basis.
4. The creation of a specialized unit within CADE to implement the new tools. This unit will be responsible for monitoring digital markets, designating economic agents, establishing and monitoring obligations, and investigating potential violations.
5. The implementation and monitoring of substantive obligations in cooperation with regulatory bodies such as ANATEL (telecommunications) and the ANPD (data protection), whenever necessary. These authorities may be involved in designing, implementing, and monitoring specific obligations that are set after designated companies have been investigated.
6. Increasing CADE’s power to conduct market studies, granting its Department of Economic Studies (DEE) powers to request information and analyze a particular sector or industry either at its own behest or after requests from other bodies.
7. The creation of a cross-institutional cooperation forum involving CADE and other federal bodies (such as ANATEL, the ANPD, and SENACON) to address topics related to digital markets.
Axis 2 – Proposed soft law adjustments:
8. A review of CADE’s guidelines, directives, and practices for continued improvement in identifying and evaluating competitive risks associated with digital platforms, such as the inclusion of network and ecosystem analyses.
9. A review of CADE’s merger filing form, including topics that are specific to digital markets.
10. The potential adoption of the ordinary procedure for analyzing mergers involving digital platforms with a high user base, provided they meet the legally established minimum revenue criteria for mandatory pre-merger filing.
11. Making use (whenever convenient and necessary) of the prerogative that CADE has to require mergers to be filed whenever they may entail risks to competition , even if they do not meet the formal criteria for mandatory pre-mergerfiling (Article 88, Paragraph 7 of the BCL). According to the report, this would be especially important in cases involving vertical integration between digital platforms or cases that imply access to a larger volume of data relevant to competition concerns.
12. Amendments to Interministerial Ordinance No. 994/2012 that would raise the current gross revenue thresholds for mandatory pre-merger filing. With this, CADE would be able to focus its efforts on analyzing transactions with greater potential to harm competition.
The SRE-MF’s report comes in the wake of intense discussions involving the regulation of digital markets and the technology sector, both abroad and in Brazil. In releasing the report, the SRE/MF seeks to deepen the understanding of the economic and competition aspects of digital platforms in Brazil and support proposals capable of improving the SBDC – including proposals already being discussed by Brazil’s government and the Congress.
For more information on this topic, please contact Mattos Filho’s Antitrust and Technology practice areas.