Interim Measures Applied to Digital Platform Exclusivity Cases: The Brazilian Recent Experience

Antitrust enforcement in digital markets requires a cautious approach, yet their fast-changing nature also calls for quick responses. In certain circumstances, interim measures may serve as tools to enable some level of preliminary intervention before it is too late, but could be especially challenging when imposed on digital platforms without in-depth knowledge on the investigated conduct or even on the market itself. This paper discusses the role of interim measures applied to digital platform exclusivity cases in the context of the Brazilian recent experience with the iFood and Gympass probes, from which one can draw important lessons to similar investigations in the future. To avoid the risk of overenforcement in the imposition of interim measures, we argue that a competition authority should be able to monitor their effects and amend or adjust its decisions overtime to ensure that they are specifically tailored to inhibit the occurrence or aggravation of competitive harm that may not be restored – otherwise antitrust enforcement may inhibit innovation and disruption in digital platforms, to the expense of consumers.

By João Felipe Achcar de Azambuja^[1]

I. INTRODUCTION

Like many other antitrust authorities worldwide, the Brazilian competition agency (“CADE”) has been devoting increasing attention to vertical agreements in digital markets, including, inter alia, exclusivity clauses practiced by online platforms.

Antitrust enforcement in digital markets