A importância do procedimento de Consulta junto ao Conselho Administrativo de Defesa Econômica para a efetividade das normas de Defesa da Concorrência

• Ano de defesa: 2021
• Autor(a) principal: Nascimento, Flavio Augusto Ferreira do
• Orientador(a): Matsushita, Thiago Lopes
• 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: Brasil
• Palavras-chave em Português: Direito econômico; Concorrência; Conselho Administrativo de Defesa Econômica (Brasil)
• Palavras-chave em Inglês: Law and economics; Competition; CADE
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/23992

The objective of this research is to encourage discussion on the importance of the Consultation procedure before the Administrative Council for Economic Defense (“CADE”). This is because, firstly, the Consultation serves as a communication channel between the parties concerned and the authority, so that the former can obtain from the latter an interpretation as to the application of the intricate rules of Competition Defense, in order to achieve legal certainty and predictability with regard to their actions. Bu, in addition, this research intends to identify the Consultation procedure too as an important instrument for CADE to ensure the effectiveness of antitrust rules, which aim to preserve the environment of market dispute among economic agents, thereby providing society with social welfare, such as better prices, quality, innovation and other positive externalities. In fact, the interrelation between Law and Economics gives rise to countless situations, formalized through commercial practices or corporate transactions, which correspond to the sources of Consultation to CADE, and require caution from economic agents so that they do not offend the economic order founded on principles, which are very dear to the society, especially that of free competition. The evolution of the Consultation procedure restored the desired legal bond of the authority its decision, and thereby rescued its incentives. With the Consultation, CADE, through its preventive and repressive functions, has a means to ensure previous, clear and safe positions to society, thereby aiming at the safeguard of the principle of free competition. Based on a study of CADE's case law on Consultations submitted since 2012, it is possible to conclude that the Consultation procedure fulfills the intent of providing the administered individuals and legal entities with legal certainty and predictability. However, as far as its role as an instrument for the effectiveness of the rules of Defense of Competition is concerned – even though predominant in this task - there is still a great potential to be explored given the constraints imposed by authority itself (deadline for responses and impossibility of further instruction)