A aplicação do antitruste no Brasil: o mito da falta de efetividade da lei de crimes contra a economia popular de 1938

Abstract

The present study has as its theme the effectiveness of the “Law of Crimes against Popular Economy” (Decree-Law No. 869 of November 18, 1938), the first national statute with antitrust provisions. This is a landmark in the history of competition law and policy in Brazil. The problem to be faced concerns a thesis stated and reiterated by various authors in the Brazilian antitrust doctrine. Such thesis originally coined by Benjamin M. Shieber, postulates that the Decree-Law No. 869/1938 had no effectiveness in its antitrust provisions. The hypothesis of this paper is that such thesis is a myth. The objective of this research, therefore, is to verify the application of competition law in his early years, What is justified on account of the historical importance of the law of Crimes against the Popular Economy for the defense of competition in the country and the need for empirical verification of a thesis made and reaffirmed by significant authors of national antitrust doctrine. To test the hypothesis, we address a bibliographical and case law research in a double effort of qualitative analysis: first, analysis of antitrust doctrine that starts with Shieber and reiterates his thesis examined historically. Second, analysis (not exhaustive) of the case-law of the authority responsible for the application of Decree-Law nº 869/1938, the Court of National Security (TSN). The results showed that the TSN has applied the Decree competitive devices. Therefore, the conclusion is in order to confirm the hypothesis, i.e. that the lack of effectiveness of the antitrust provisions of the law of Crimes against the Popular Economy is, in fact, a myth.