Dirigismo rúptil: reflexões sobre a recusa de contratar no direito concorrencial
The presente academic work aims at discussing and analyzing the legal offense defined by the refusal to deal (article 36, § 3º, item XXI of Federal Law 12.529 / 2011), given its theoretical and economic repercussions - considering the rise of the platform and informational economies in recent years....
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| Formato: | bachelorThesis |
| Idioma: | pt_BR |
| Publicado em: |
Universidade Federal do Rio Grande do Norte
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| Endereço do item: | https://repositorio.ufrn.br/handle/123456789/51788 |
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| Resumo: | The presente academic work aims at discussing and analyzing the legal offense defined by the refusal to deal (article 36, § 3º, item XXI of Federal Law 12.529 / 2011), given its theoretical and economic repercussions - considering the rise of the platform and informational economies in recent years. Inaugurating the first part of the academic work, a brief historical rescue of the discipline of regulating the markets through antitrust instruments is presented, collating the initial records of the discipline in foreign jurisdictions and, subsequently, in the brazilian territory. We then proceed to analyze what are the assumptions of the brazilian antitrust policy and what are its legal bases for, after dissecting the structure and the operation of the Brazilian System of Defense of Competition - BSDC. Having overcome the necessary "general theory" of brazilian competition law, we proceed to examine the theoretical presuppositions of the legal act of contracting and then investigate what are the constitutional foundations that imply in the illegality of the refusal to deal by competition law terms and what are the economic and legal justifications for its classification as an infraction of the economic order. However, with a view to delimiting what would qualify a refusal to deal as unlawful for antitrust purposes, it is examined what are the necessary requirements for the characterization of a refusal to hire illegitimate, outlining, among other generic criteria, production and objective justification. Faced with theoretical assumptions that involves the thematic, the methodology of sanctioning by the competition authorities is analyzed, with problems related to inefficiencies of the obligation to deal enforced by the rules of competition law and which result in what is described as "lumpy interventionism". Against this background, some parameters are proposed for sanctioning purposes in accordance with constitutional provisions and efficiency standards. It is concluded that, in terms of compulsory contracting, the consensus method of resolving conflicts within CADE, which is possible through a legal permissive, is the most efficient and less aggressive to the constitutional guarantees of free enterprise and that the analysis of the refusal to deal must be guided by the parameter of the lumpy interventionism, especially for the future actions involving economic agents operating in the markets of platform and information technology. |
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