guia prático do cade - Conselho Administrativo de Defesa Econômica

kets, or the participation on the same relevant market of the economic agents,among other objectives.6. What is an anticompetitive conduct?An anticompetitive conduct is any behavior adopted by an economic agentthat, even potentially, harm free competition, even if the offender didn’t havethe intention to harm the market.Market power alone is not considered illegal, but when a company or groupof companies abuse of this power by adopting a behavior that harms free competition,then such behavior is considered an abuse of economic power.This abuse is not limited to a restricted set of specific practices, since theanalysis about a possibility of a conduct causing damage to competition is complexand many factors must be analyzed in order to determine whether a practiceis an abuse or not. That is why law is wide, allowing CADE to act in orderto repress conducts which, after investigated, may be deemed as harmful tocompetition.CADE’s Resolution N o 20/99 fix, in a didactic way, a number of conductsthat may be considered as restrictive to free competition and will be describedforward.7. What are preliminary investigations?Preliminary investigations, dealt with in articles 30 and 31 of Law N o8.884/94, occur within the purview of SDE and aim at gathering evidence ofharmful practices to the market. They may be set up by a denunciation or initiatedby SDE itself, subject to the criterion of the Secretary for Economic Law.Preliminary investigations may be kept secret if so determined by the Secretaryof Economic Law. In case the evidence is not confirmed, the files of thepreliminary investigations will be archived. SDE must send a mandatory appealto CADE, called “Recurso de Ofício” (ex officio appeal). CADE may takesupplementary measures and, if it deems that there is evidence of infractions,it may determine the opening of an administrative proceeding and return thefile to the Secretariat for Economic Law for further investigation or even, if itunderstands that the instruction is not complete, request that the PreliminaryInvestigation be returned to SDE for a new instruction.140