A regra da razão na Lei 12.529/2011 e a nova LINDB

Abstract

Law 12.529/2011, also known as the New Competition Law, regulates the Brazilian competition system. Although it adopts a capitalist model, national legislation does not tolerate abuses of economic power and establishes mechanisms to prevent and penalize violations of the economic order. On the other hand, the law also provides exceptions for situations that, in principle, may be anticompetitive but could result in positive effects for competition. The Rule of Reason, a standard developed by U.S. law, allows for this type of analysis. Concurrently, the LINDB was introduced into the Brazilian legal system with the aim of reducing the high degree of indeterminacy in many public norms and the relative uncertainty regarding the true content of each norm. In light of this, the objective of this study is to determine whether the LINDB, as it guides all Brazilian law, has any impact on CADE’s approach to economic concentrations and anticompetitive practices. To achieve this goal, a panoramic analysis will be conducted of CADE’s decisions and the standards it applies, as well as Article 20 of the LINDB and its impact on the agency’s rulings. The study employs a technical procedure involving bibliographic, jurisprudential, and legislative review, utilizing qualitative analysis predominantly guided by a hypothetical-deductive and interpretative-judicial method. The investigation revealed that CADE’s jurisprudence is inconsistent in defining and applying the chosen standards. Furthermore, it was found that the use of the Rule of Reason is more aligned with the Brazilian constitutional and legal order, especially with the enactment of the new LINDB.