O artigo 47-A da lei 12.529/2011 e a tutela da evidência nas ações de reparação de danos concorrenciais pela prática de cartel

Abstract

Considering the negative repercussions that cartels have on social well-being, an effective system to repress such misconduct that can deter its practice is necessary. In this context, antitrust civil liability is an essential mechanism, not only for enabling the reparation of the damages caused by cartels but also for playing a significant deterrent role. Therefore, an expressive use of actions for antitrust damages is desirable, and the public administration must ensure the effectiveness of such actions, which inherently involve a high level of complexity. Antitrust civil liability requires demonstrating an illicit act, a damage, and the causal link between them, with the quantification of such damage depending on economic expertise based on the construction of hypothetical scenarios. Aware of the time-consuming nature of antitrust damages actions, the Brazilian legislator established that the condemnatory decision of the Administrative Council for Economic Defense (CADE) tribunal can substantiate the granting of a preliminary injunctive relief. In this sense, a preliminary injunctive relief serves the purpose of shifting the burden of time in the process, encouraging more appropriate procedural conduct by the defendant. For a preliminary injunctive relief to be granted, it is necessary that one of the legal hypotheses allowing its concession applies in the specific case, and it is essential to ascertain that the plaintiff has a strong claim and the defendant a weak defense. Article 47-A of Law 12,529/2011 creates a specific type of preliminary injunctive relief by establishing the possibility of CADE’s decisions substantiating the granting of a preliminary injunctive relief within the scope of antitrust damages actions. However, CADE's decision typically does not contain elements from which all constitutive facts of the plaintiff's right in this type of demand can be extracted, which is necessary to establish the probability of the claim. Thus, despite CADE's decision’s capacity to substantiate the granting of a preliminary injunctive relief, if it does not contain all the necessary elements, it cannot be used in isolation, requiring the plaintiff to submit evidence capable of influencing the judge's conviction that the defendant's antitrust civil liability is established. Nevertheless, despite CADE's decision indeed being capable of strengthening the plaintiff's allegations, the granting of preliminary injunctive relief is not allowed before the hearing of the defendant.