New challenges, new remedies: the commitments negotiated by Cade in the Settlement Agreements signed with Gympass and iFood in exclusive dealing agreements investigations

Abstract

Context: Abuse of dominant power through the adoption of exclusive dealing agreements has long been investigated by Cade, but recently the antitrust analysis of this type of practice has gained new contours. Competition law does not consider exclusive dealing agreements illegal per se, as it recognizes that they can provide important efficiencies, such as avoiding the free-riding on investments made in the exclusive partner and reducing transaction costs. Historically, Cade's precedents in which a Settlement Agreement (TCC, in its acronym in Portuguese) was signed either prohibited such agreements or established, as a central obligation, a cap for its adoption. The TCCs recently signed with Gympass and iFood, digital market players, included an additional element: the performance commitment.

Objective: This article aims to present the changes in Cade's approach to exclusive dealing agreements and the reasons that justified the innovations brought by the recent TCCs.

Method: Using the comparative method, a parallel was drawn between the TCCs recently signed with the two digital platforms and those signed in the last decade with Souza Cruz and Ambev.

Conclusions: It was possible to verify that the adoption of a performance commitment in the TCCs recently signed by Cade with Gympass and iFood brought important progress and innovation in the approach to exclusive dealing agreements. Such commitments establish clear and objective growth targets for the exclusive partners as a result of the investments made by the Party, in order to ensure that the efficiencies resulting from exclusivity outweigh the effects of the restriction. Its adoption dissipates the competitive risks inherent to the practice without harming the innovation capacity of the markets involved.