Welcome to the Latin Antitrust Chronicles – a series covering some of the most relevant developments in competition law in the region. Our comprehensive coverage will include decisions by authorities as well as relevant bills, advocacy efforts, and other initiatives pertinent to the debate. Our contributors alternating each quarter include Marcela Mattiuzzo, former Advisor and Chief of Staff at the Administrative Council for Economic Defense (CADE) in Brazil and current partner at VMCA, Carlos Ragazzo, former general superintendent at CADE and currently Professor at FGV Law School, and Bruna Cataldo, PhD in Economics and Consultant at RGZ. We trust you will find it an engaging read!
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Abstract: This overview highlights the Brazilian competition authority’s investigations into issues related to human resources– CADE launched two new investigations in late 2024– as well as some of the key takeaways from the OECD’s Latin American and Caribbean Competition Forum–which covered fintech and open banking, the use of interim measures, and ex officio cartel investigations. Lastly, we focus on the main developments regarding digital debates in Brazil, including the preventive measure issued by CADE against Apple, the public hearing on mobile ecosystems and operational systems, and the upcoming bill of law for ex-ante platform regulation.
Brazil’s CADE Expands Investigation into Anticompetitive Practices in HR
In October 2024, CADE launched two new investigations into suspected anticompetitive conduct in the Brazilian labor market focusing on two corporate groups: Grupo de Empresas de Consumo (GECON) and Grupo Executivo de Salários (GES)/Grupo Executivo de Administradores de Benefícios (GEAB). Members include companies from multiple sectors in the Brazilian economy, such as Automotive Industry, Technology and Telecommunications, Food and Beverages, Cosmetics and Personal Care, Pharmaceutical and Healthcare, Energy and Heavy Industry.
CADE is assessing whether these exchanges amount to a stand-alone antitrust violation, like price-fixing in product markets. The authority has previously indicated that certain HR practices –such as non-poaching agreements (where companies agree not to hire each other’s employees) and wage-fixing arrangements– can restrict competition in the labor market and reduce employee mobility. CADE has preliminarily signaled that the systematic exchange of employment-related data can be perceived as evidence of tacit coordination. The authority has even debated the possibility of shifting the burden of proof in cases where sensitive HR data is exchanged frequently and systematically.
Such exchanges could be presumed illegal unless companies can demonstrate pro-competitive justifications. Thus, this new investigation is likely to fuel debates on what can be legitimately exchanged within HR benchmarking groups and what crosses the threshold into anticompetitive conduct. As CADE refines its approach to enforcement in this area, companies will need to reassess their participation in such practices, ensuring compliance with antitrust regulations while still leveraging industry insights.
Key Takeaways from the Latin American and Caribbean Competition Forum 2024
The 2024 Latin American and Caribbean (LAC) Competition Forum (LACCF), held in the Dominican Republic on October 9-10, brought together regulators, academics, and industry experts to discuss pressing competition issues in the region. Three key topics dominated the agenda: competition in fintech and open banking, the use of interim measures in competition investigations, and ex-officio Cartel investigations[1]. The results from the speakers’ presentations, policy recommendations by the OECD, and countries’ contributions to the main sessions are summarized below.
Competition, Fintechs, and Open Banking
The first session of the event focused on the digitalization of the financial sector in Latin America and the Caribbean, how this transformed the structure of their financial systems, and impacted the competition and regulatory landscape. The background note that the OECD published to motivate the session pointed out the pro-competitive potential of fintechs and the regulatory framework created to foster their business models but pointed to regulatory challenges that competition authorities and specialists needed to address, especially ensuring fair access to financial data, preventing exclusionary practices by incumbents, and fostering interoperability in payment systems[2].
Several countries shared their contributions regarding these challenges and, during a dedicated session at the event, three specialists presented their valuable insights into the challenges raised by the OECD. Esteban Greco[3], former President of Argentina’s Comisión Nacional de Defensa de la Competencia (CNDC) focused on the role LAC competition authorities have played in transforming the region’s financial landscape into a modern digitized sector. He highlighted that fintechs, particularly in payment markets, have been a major area for digital economy cases and regulatory intervention for competition agencies in LAC and that authorities have played a crucial role in removing barriers for these new business models, fostering competition and enabling financial inclusion by promoting innovative financial products.
Regarding the challenges emphasized by the OECD, Marcela Mattiuzzo[4] –when speaking of the Brazilian experience with Open Banking– highlighted how proactively promoting competition has shaped a more dynamic financial landscape. On the other hand, there are unanswered questions on how competition authorities will handle the possibility of tech companies with access to vast amounts of data operating in an Open Banking environment. In navigating this transformation, she identified that the key challenges the authorities will face include ensuring reciprocity, maintaining technological neutrality, fairly distributing costs, and creating the right economic incentives for infrastructure development.
Francisca Levin[5], who presented the Chilean perspective on the topic, added to this perspective the importance of preventing “creative compliance” with Open Banking regulations, keeping market participants from exploiting regulatory gaps to restrict data exchanges, particularly legacy players with fewer incentives to share information. Additionally, she highlighted the need to ensure that the exchange of commercially sensitive information remains strictly limited to what is necessary for system operation inside, preventing any misuse that could lead to illegal behavior.
So, moving forward to the next phase of modernizing and promoting more competitive financial systems in LAC, the regulatory debates revolve around guaranteeing proper implementation and enforcement of Open Banking, avoiding abuses not only from the large incumbents in the financial system but also from potential entrants who already possess vast amounts of data through operating in other sectors and aim to enter the financial system.
Interim Measures in Competition Investigations
In the second session of the event, which focused on interim measures in competition investigations, the OECD raised three key challenges –evidentiary thresholds, procedural safeguards, and the risk of judicial reversals. The countries’ contributions to the topic, following suit, highlighted the tension between swift intervention and legal certainty.[6]
Paulo Silveira, representing OECD’s Secretariat,[7] started the discussion by outlining the specificities of interim measures in Latin America, emphasizing their role in competition enforcement. Through a comparative analysis of several countries, he noted that –despite differences in national laws– LAC authorities from countries like Argentina, Chile, Colombia, the Dominican Republic, Paraguay, and Peru tend to adopt similar approaches in handling competition-related risks. Silveira especially pointed to a trend of growing reliance on interim measures to intervene in digital and highly dynamic markets.
In this context, he stressed the risks of both overenforcement and underenforcement, describing interim measures as a powerful tool whose effectiveness depends on key legal principles, such as adaptability, reversibility, proportionality, and enforceability. A message that was echoed by Roxana Arellano’s[8] detailing of the Peruvian experience. She brought evidence from practice of the challenges of granting interim measures, especially the difficulty of making the exhaustive review necessary to establish legal requirements, designing the interim measure itself, and monitoring compliance in cases where negotiations are needed.
Juan Herrera’s[9] presentation shared a similar perspective: he noted that while interim measures are a valuable tool in antitrust enforcement, their application must be strategic and context-specific. He also added that weighing their benefits and drawbacks is crucial, particularly given the risks of false positives and false negatives. He also highlighted these challenges must be solved as the digital economy continues to expand since antitrust authorities are expected to rely more on interim measures to address emerging competition concerns effectively.
In that sense, the debate showed that the upcoming LAC debate regarding interim measures will be focused on adjusting its granting criteria due to their growing importance in digital markets competition cases.
Ex Officio Investigations of Cartels
Regarding Ex officio investigations of Cartels, the OECD aimed to foster a debate on the modernization of proactive enforcement tools that allow authorities to detect and dismantle cartels without relying solely on complaints or leniency applications.
The organization’s background note to the session highlighted the importance of strengthening cartel detection through proactive measures, such as increasing market monitoring, price tracking, developing AI-driven cartel screening tools, and promoting international cooperation to address cross-border cartels and ensure that enforcement actions are aligned across jurisdictions[10].
The OECD also highlighted the trend of declining leniency applications, which makes these new methods critical to cartel enforcement strategies. The presentation by Marcelo Guimarães,[11] representing OECD’s Secretariat, emphasized these topics, as well as countries’ contributions, leading to a conclusion that, as markets continue to evolve, there is a trend of international cooperation, regulatory adaptation, and data-driven enforcement of competition authorities across LAC to maintain competitive, fair, and dynamic economic environments.
Implications for Competition Law Debates and Trends in Latin America
Overall, the LACCF 2024 emphasized the need for more active and dynamic enforcement, tailored to the challenges posed by market digitalization. The discussions reinforced the importance of international cooperation in ensuring a competitive environment in the region. Cases from Peru, Brazil, Argentina, Chile, and others demonstrated how authorities are addressing market dominance in digital platforms but also underscore the need for clear enforcement criteria to maintain legal certainty.
Digital Debates in Brazil: Preventive Measure Against Apple, Public Hearing on Mobile Ecosystems, and a Bill of Law for Ex Ante Regulation
Several developments regarding digital markets took place over the last months in Brazil. At CADE, two stand out. The first is the preventive measure issued by the General Superintendency (GS) against Apple. This took place within the investigation initiated by Mercado Livre’s complaint that focused on Apple’s control over the distribution of digital goods and services within iOS. The GS understood that measures should be taken to open the operational system to competitors, including the end of anti-steering provisions, the possibility of competing app stores being installed on iOS, and the untying of Apple’s payment system, among other obligations that are largely similar to those already set forth in several jurisdictions. Apple appealed to the Tribunal and simultaneously took the case to court. Initially, the Judiciary agreed with the company and suspended CADE’s measure, but the Court of Appeals reversed the decision and upheld the antitrust authority’s injunction. Now, Apple has 90 days to comply with and adopt the measures requested by the GS –at least until further appeals are assessed in court.
Simultaneously, CADE also decided to hold a public hearing to more broadly discuss mobile ecosystems. It invited contributions from any interested parties to either speak at the hearing or submit written comments regarding the state of competition in that segment. 16 entities took part in the hearing and 30 sent written submissions to the authority –including Apple and Google, the main targets of scrutiny, as well as Epic Games, Match Group, the Coalition for App Fairness, and several civil society organizations. According to the GS, the results of the hearing will be compiled by CADE and made available to the general public.
The hearing was also seen as a movement by CADE to consolidate itself as the potential regulator for digital markets. The Ministry of Finance released a report in the last trimester of 2024, as a result of the public consultation process in February, arguing that some form of ex-ante regulatory effort in Brazil is warranted and that the competition authority is best positioned to take that role. But there is an internal dispute within the government, notably with the telecommunications agency, over that attribution.
The report states that the companies under scrutiny should be selected based on qualitative (and not solely quantitative) criteria that could effectively demonstrate their relevant competitive status in the Brazilian economy. That designation would take place at CADE, though the precise process is still unclear. Once designated, companies would have to comply with ex-ante measures. The list of such measures is, however, unclear at this point, though the Ministry presented recommendations. The report’s proposal, if compared to efforts in other jurisdictions, would likely be close to what the United Kingdom put forward through the Digital Markets, Competition, and Consumers Act (DMCC), but what will indeed be fully incorporated into policy remains to be seen. More clarity is ex expected soon, as the government is rumored to present a bill of law to Congress in the following weeks. The expectation is that the authority would gain a new unit, placed beside the GS, that would be responsible for ex-ante regulation of digital markets and the assessment of unilateral conduct. The original body would retain its capacities in assessing mergers and acquisitions, as well as collusive behavior.
Bruna Cataldo, Carlos Ragazzo and Marcela Mattiuzzo
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| Citation: Bruna Cataldo, Carlos Ragazzo and Marcela Mattiuzzo, Latin Antitrust Chronicles: October 2024 – February 2025, Network Law Review, Winter 2025. |
References:
- [1] OECD, Latin American and Caribbean Competition Forum 2024, Oct. 8-10, 2024. https://www.oecd.org/en/events/2024/10/latin-american-and-caribbean-competition-forum-2024.html
- [2] OECD, Competition, Fintechs and Open Banking: An Overview of Recent Developments in Latin America and the Caribbean, OECD Roundtables on Competition Policy Papers. https://www.oecd.org/content/dam/oecd/en/publications/reports/2024/09/competition-fintechs-and-open-banking_8b85b99b/de9fe6b4-en.pdf
- [3] Esteban Greco, Competition, Fintechs and Open Banking, 2024 LACCF (Oct. 16, 2024). https://www.slideshare.net/slideshow/competition-fintechs-and-open-banking-esteban-greco-2024-laccf/272474522
- [4] Marcela Mattiuzzo, Competition, Fintechs and Open Banking, 2024 LACCF (Oct. 16, 2024). https://www.slideshare.net/slideshow/competition-fintechs-and-open-banking-marcela-mattiuzzo-2024-laccf/272474520
- [5] Francisca Levin, Competition, Fintechs and Open Banking, 2024 LACCF (Oct. 16, 2024). https://www.slideshare.net/slideshow/competition-fintechs-and-open-banking-francisca-levin-2024-laccf/272474527
- [6] OECD, Interim Measures in Abuse of Dominance Investigations in Latin America and the Caribbean, OECD Roundtables on Competition Policy Papers. https://www.oecd.org/content/dam/oecd/en/publications/reports/2024/09/interim-measures-in-abuse-of-dominance-investigations-in-latin-america-and-the-caribbean_79b25380/277a60aa-en.pdf
- [7] OECD Secretariat, Interim Measures in Abuse of Dominance Investigations, 2024 LACCF Discussion (Oct. 16, 2024). https://www.slideshare.net/slideshow/interim-measures-in-abuse-of-dominance-investigations-oecd-secretariat-2024-laccf-discussion/272474528
- [8] Roxana Arellano, Interim Measures in Abuse of Dominance Investigations, 2024 LACCF (Oct. 16, 2024). https://www.slideshare.net/slideshow/interim-measures-in-abuse-of-dominance-investigations-roxana-arellano-2024-laccf/272474533
- [9] Juan Pablo Herrera, Interim Measures in Abuse of Dominance Investigations, 2024 LACCF (Oct. 16, 2024). https://www.slideshare.net/slideshow/interim-measures-in-abuse-of-dominance-investigations-juan-pablo-herrera-2024-laccf/272474523
- [10] OECD, Detecting Cartels for Ex Officio Investigations, OECD Roundtables on Competition Policy Papers. https://www.oecd.org/content/dam/oecd/en/publications/reports/2024/09/detecting-cartels-for-ex-officio-investigations_6836e489/1ea7cdba-en.pdf
- [11] OECD Secretariat, Ex Officio Investigations, 2024 LACCF (Oct. 16, 2024). https://www.slideshare.net/slideshow/ex-officio-investigations-oecd-secretariat-2024-laccf/272474532
