Is the Future of Antitrust in the Past?Digital platforms and the debate on preventive interventions
- Decodificando a Concorrência
- Mar 20
- 5 min read
A New Regulatory Regime
Historically, competition law enforcement has operated in a reactive manner, relying on ex post interventions – those that occur after the fact. Under this model, regulatory authorities act as investigators, analyzing specific conduct only once it has already taken place. The goal is to gather concrete evidence of market harm before imposing any applicable penalties or sanctions.[1]
In what is commonly referred to as “digital markets” – a contested concept largely shaped by the EU’s regulatory vocabulary, and that has also gained traction in Brazil’s legislative debate –, however, academic and legal debates have increasingly argued that waiting for harm to materialize may be an ineffective strategy. This shift in perspective has led several jurisdictions to adopt so-called ex ante instruments, which are preventive rules established before any specific infringement is proven.
The logic behind this approach is straightforward: if certain markets present a high risk of concentration in the hands of a few actors, it may be more efficient to define conduct rules in advance rather than attempting to remedy harmful behavior after it occurs. While intuitive, this reasoning does not always hold and may entail a range of adverse consequences.
International Influence on Brazil
The European Union took the lead in this new phase by implementing the Digital Markets Act (DMA)[2], while the United Kingdom followed a similar path with the Digital Markets, Competition and Consumers Act (DMCCA).[3] Both regimes reflect a decision to establish clear rules of engagement for large technology companies even before the first signs of misconduct emerge.
However, warning signals have already been raised in Europe. Several studies highlight the risks associated with overly rigid and inflexible preventive regulation.[4] Recent analyses suggest that ex ante regimes may generate significant regulatory costs, reduce incentives for innovation, and create legal uncertainty for firms and investors.[5]
Despite these concerns, Brazil appears inclined to follow a similar trajectory through Bill No. 4,675/2025, which proposes the introduction of mechanisms designed to shape the conduct of digital platforms in advance.[6]
Against this backdrop, a central concern arises:
Has Brazilian competition law truly become insufficient to address large digital platforms to the point of requiring structural reform?
The Role of CADE and Existing Instruments
CADE has consistently emphasized that traditional competition law is resilient and capable of adapting swiftly to new markets and business models.[7] The authority’s recent track record in digital markets demonstrates that existing tools remain both active and effective. This is evidenced by the frequent use of preventive measures and behavioral remedies which, in several cases, closely resemble the obligations proposed in current regulatory reforms.[8][9][10]
This suggests that, even within a traditional framework, the authority already possesses mechanisms capable of intervening in potentially anticompetitive conduct in digital platforms.
A New Paradigm for the Brazilian Regulatory Debate
Given these uncertainties, the debate on competition policy for digital platforms in Brazil should be structured around two fundamental axes. The first invites a closer examination of empirical evidence to identify precisely where the current model is succeeding and whether intervention is warranted at all. The second focuses on assessing the practical consequences that regulatory changes may bring to the national innovation ecosystem, particularly learning from jurisdictions that have already implemented such regimes.
Moreover, the Brazilian debate cannot overlook a critical detail that often goes unnoticed: the international models we seek to emulate are still in their early stages, and their preliminary results are already raising concerns. Both the DMA and the DMCCA are recent regimes, and their long-term effects on technological innovation, investment incentives, and competitive dynamics are already showing concerning spillover effects and negative consequences
Looking Ahead
In Brazil, the matter remains open. It is crucial to recognize that a preventive (ex ante) regime is a double-edged sword: while it may anticipate risks to the market, it can also pave the way for excessive intervention, penalizing strategies that may in fact be efficient and ultimately stifling technological innovation.
Before turning the page and reforming Brazil’s competition framework, we must be clear on whether we are responding to a demonstrated failure of the current system or merely betting on a regulatory hypothesis that is still being tested abroad and whose real benefits remain uncertain.
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Notes and References
[1] Article 36 of the Brazilian Competition Law establishes that violations of the economic order are assessed based on “acts, regardless of their form, that have as their object or may produce the following effects, even if such effects are not achieved […]”, that is, acts that have occurred and are capable of verification. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[2] EUROPEAN UNION. Regulation (EU) 2022/1925 of the European Parliament and of the Council, of September 14, 2022, on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). Available at: https://eur-lex.europa.eu/eli/reg/2022/1925/oj/eng.
[3] UNITED KINGDOM. Digital Markets, Competition and Consumers Act 2024. Available at: https://www.legislation.gov.uk/ukpga/2024/13/contents.
[4] BAUER, Matthias; ERIXON, Fredik; GUINEA, Oscar; MAREL, Erik van der; SHARMA, Vanika. The EU Digital Markets Act: Assessing the Quality of Regulation. European Centre for International Political Economy, 2022. Available at: https://ecipe.org/publications/the-eu-digital-markets-act/.
[5] DE STREEL, Alexandre (coord.). Digital Markets Act: Making economic regulation of platforms fit for the digital age. Centre on Regulation in Europe (CERRE), 2020. Available at: https://cerre.eu/wp-content/uploads/2020/11/CERRE_DMA_Making-economic-regulation-of-platforms-fit-for-the-digital-age_Full-report_December2020.pdf.
[6] BRAZIL. House of Representatives. Bill No. 4,675/2025. Amends Law No. 12,529 of November 30, 2011; provides for the designation of economic agents of systemic relevance in digital markets; establishes special obligations for such agents; and creates the Digital Markets Superintendence within the Administrative Council for Economic Defense. Available at: https://www.camara.leg.br/proposicoesWeb/fichadetramitacao?idProposicao=2562481.
[7] BRAZIL. Administrative Council for Economic Defense (CADE). Cadernos do CADE: Mercados de Plataformas Digitais. Revised and updated edition on Aug. 29, 2023. Brasília: CADE, 2023. p. 246. Available at: https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/estudos-economicos/cadernos-do-cade/Caderno_Plataformas-Digitais_Atualizado_29.08.pdf.
[8] BRAZIL. Administrative Council for Economic Defense (CADE). SG orders the adoption of an interim measure against Apple. CADE, November 25, 2024. Available at: https://www.gov.br/cade/pt-br/assuntos/noticias/sg-determina-aplicacao-de-medida-preventiva-contra-a-apple.
[9] BRAZIL. Administrative Council for Economic Defense (CADE). CCADE approves a cease-and-desist agreement (TCC) in the investigation of Apple’s practices in iOS. CADE, December 23, 2025. Available at: https://www.gov.br/cade/pt-br/assuntos/noticias/cade-forma-maioria-pela-homologacao-de-tcc-em-investigacao-sobre-praticas-da-apple-no-ios.
[10] BRAZIL. Administrative Council for Economic Defense (CADE). CADE opens an investigation against Meta and adopts an interim measure suspending WhatsApp’s new AI-related terms. CADE, January 12, 2026. Available at: https://www.gov.br/cade/pt-br/assuntos/noticias/cade-abre-inquerito-contra-meta-e-aplica-medida-preventiva-suspendendo-novos-termos-do-whatsapp-sobre-ia.