Sistema brasileiro de defesa da concorrência: vulnerabilidade e desarmonia jurídica do controle administrativo

• Ano de defesa: 2013
• Autor(a) principal: Melfi, Carlo Mazza Britto
• Orientador(a): Nazar, Nelson
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: BR
• Palavras-chave em Português: Controle administrativo; Concorrência; Vulnerabilidade
• Palavras-chave em Inglês: Administrative control; Competition; Vulnerability
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/6234

The creation of the Brazilian System of Competition Defense, laid down in article 1 of Law nº. 12.529/11, raises a number of questions regarding the independence and decisional methodology of the members of CADE - Administrative Council for Economic Defense - as well as regarding the compatibility with the interpretative criteria related to the matter. Therefore, based on the legal analysis of experts and professors as well as academic researches on the conducts of the mentioned legal entity, the scope of this study is to expose the vulnerabilities of a system based on mandates by presidential nomination and its doubtful autonomy. In fact, the study criticizes the very convenience of maintaining such a substantial administrative apparatus created for the prosecution of violations against the Brazilian Economic Order and for the regulation of corporate concentration. The administrative discretion ostensibly employed in some trials and the variability of political contexts have been closely watched with great concern, as they may present a threat to legal stability and predictability. However, once the current system has been kept, it is imperative to present solutions that reconcile administrative and legal criteria of decision making. Considering also that the perception of a certain normative economic utilitarianism and a pragmatic decision making process, typical in Anglo-Saxon and U.S. Law, bring great difficulty to a hermeneutic approach. And the policy to be adopted, no doubt, is the application of the Principles laid down in the Brazilian Constitution, thus preserving the integrity of the county s legal system. It is also imperative to establish and recognize that several entities are fully legitimate to defend transindividual interests in court, particularly the Brazilian Ministry of State Prosecution, and therefore one can not admit that the establishment of an administrative repression system give rise to institutional accommodation