Fixação de preço de revenda mínimo no CADE o caso SKF

Abstract

The Brazilian Competition Authority (Cade) has condemned in 2013 a case of minimum Retail Price Maintenance (mRPM) implemented by SKF do Brazil. Although it was not a decision in favor of a perse rule to mRPM, Cade pointed that it will implement a very strict rule ofreason approach. Cade assumes that the conduct is always harmful to competition and that the defendant has the burden of proof to show its efficiencies and that it compensates those negative impacts. This article has two goals. First, to address Cade’s decision in light of the economic theory of mRPM, arguing that this was a setback to Brazilian antitrust. We criticize not only the excessive rigor of the conduct analysis, but also the inappropriate treatment of the role of unilateral and coordinated market power in the case. Second, we review an author’s article from 2001 in this Revista do Ibrac, which indicated that mRPM could only be
anticompetitive if it helped to support a cartel. However, the new theory that provides rationality to the idea of market foreclosure by means of a vertical integration includes the possibility that the same anticompetitive effect can occur by means of an mRPM. The main implication of this rationale is that the mRPM can be the result not only of an abuse of coordinated market power, but also unilateral.