Remédios antitruste no Brasil: tendência e critérios do CADE na utilização de remédios estruturais e comportamentais na análise de atos de concentração

Abstract

This thesis analyzes the decision-making rationale of the Brazilian Administrative Council for Economic Defense (CADE) in imposing structural and behavioral antitrust remedies in merger cases approved with restrictions between 2020 and 2024. It begins by presenting a theoretical and normative overview of the evolution of competition law in Brazil, with emphasis on the institutional structure of the Brazilian Competition Policy System (SBDC) and the preventive nature of merger control. Subsequently, it examines the conceptual and legal framework of antitrust remedies, distinguishing between structural and behavioral measures, their legal foundations, technical assumptions, and criteria for application, while addressing the challenges related to enforcement in the Brazilian context. The empirical stage of the research consists of a qualitative and documentary analysis of the decisions issued by CADE’s Tribunal in 27 merger cases subject to remedies during the selected timeframe. Each case was systematized in spreadsheets, and grouped according to the type of remedy applied, market structure, nature of the transaction, and justifications employed by the commissioners. This mapping enabled the identification of decision-making trends, recurrent legal-economic arguments, and the emergence of an institutional rationale guiding the imposition of remedies. The methodology adopted is descriptive and exploratory, combining a bibliographic review, case law analysis, and systematic coding of decisions, which allows for a direct connection between theoretical discussions and practical enforcement. The findings indicate that, although structural remedies continue to play a central role in mitigating competitive concerns, CADE has increasingly resorted to behavioral and hybrid solutions, particularly in complex or digital markets where divestitures may be impractical. The decisions reveal a growing sophistication in the authority’s reasoning, integrating legal, economic, and operational elements to ensure proportionality and effectiveness in the application of remedies while aligning with international best practices.