Considering (i) the different mechanisms for the prosecution and enforcement of competition law; and (ii) the interdependence of these mechanisms in the pursuit of antitrust goals, this thesis argues for the necessity to reconcile the institutional framework of private and public enforcement and explores how public and private antitrust enforcement mechanisms can be made compatible under the Brazilian antitrust policy as well as how this should be reflected in the discussion of current domestic legislation aiming to promote private enforcement.
This research's main objective is to contribute to the framing of an optimal institutional setting for the public and private enforcement in Brazil. For this purpose, it investigates, on the one hand, to what extent the promotion and development of private competitive enforcement assist in the achievement of public competition policy objectives. On the other hand, it examines how an exaggerated public enforcement may impact claims for damage compensation.
The study is relevant as there is a small epistemological and practical development of private enforcement in Brazil. There is still no national theoretical framework that discusses the externalities of competition law’s private persecution. Also, Brazilian studies on private enforcement focus primarily on damage compensation claims involving cartels, even though the importance of a more thorough analysis of the role of private enforcement in other types of infringements is largely recognized.
The study is well-timed, considering the (i) ongoing discussions over the approval of a Federal Bill to foster private enforcement for antitrust damages; (ii) CADE's Resolution, approved in October 2018, to discipline procedures for access to documents originating from antitrust investigations, settlement and leniency agreements; and (iii) the 2018 guidelines for the calculation of cartel damages in private enforcement claims published by the Secretariat for the Promotion of Productivity and Competition Law (SEPRAC).
This research is original for it will provide a comprehensive understanding of the profile from private antitrust lawsuits in Brazil and deliver core institutional guidance for the formulation of public policies in the area.
This thesis is organised into three main parts. The first part develops the theoretical framework that underpins the research's assumptions (i.e. understanding the role of competition policy and the mechanisms for its implementation in Brazil contrasted this with the EU experience). The second part contains an empirical investigation on the profile of private enforcement cases from State Courts of São Paulo and Minas Gerais. The concluding part contributes to the framing of an optimal institutional setting for the public and private enforcement of competition law in Brazil.