YEAR 2014 N.º 3

ISSN 2182-9845

2014 N.º 3

Miguel Pestana de Vasconcelos

A Doutora Maria Raquel Guimarães teve a gentileza de me dirigir um convite para escrever o editorial da RED, revista a cujo conselho editorial e de redação tenho a honra de pertencer.
Vejo com muita satisfação, e um legitimo orgulho, que a RED, completamente inovadora no âmbito nacional, e afinando o diapasão pelos mais exigentes padrões internacionais, cresce e se afirma como uma referência nas áreas jurídico-económicas e jurídico-empresariais. O facto de ter já fôlego suficiente para lançar uma edição temática é bem prova disso.
Não me caberá fazer a apresentação, nem dos autores, nem dos textos, já devidamente avaliados e escrutinados.
Por isso, passarei a tecer algumas curtas considerações sobre concorrência e mercado.

The antitrust law in corporate transaction in Brazil: new frontiers based on Law no. 12,529/2011

Alexandre Ferreira de Assumpção Alves / Gustavo Flausino Coelho

antitrust law; Law no. 12,529/2011; merger review; concentration act; Administrative Council of Economic Defense – CADE; pre-merger review system

Based on the recent effectiveness of Law no. 12,529/2011, the Antitrust Law, this paper aims to address the new frontiers of competition law in connection with the review of corporate transactions in Brazil. After a long process of institutional development of the Administrative Council of Economic Defense – CADE and local and foreign discussion about legal matters, the new regulatory framework was modifies in order to reflect the best practices. Among the changes, it should be highlighted the amendment of institutional design, with the increase of CADE’s role and the introduction of the new pre-merger review system. However, there are several provisions and uncertainties that shall be analyzed and challenged in order to constantly improve the new Brazilian regime of merger control. This paper will analyze these new challenges for antitrust law based on the review of the scholars and the CADE case law.

The Proposal for a Directive on certain rules governing actions for damages under national law for infringements of the Competition Law provisions of the Member States and of the European Union

Filipa Daniela Couto Campos

Proposal for a Directive, antitrust, damages, violations, Competition, National Competition Authority

The objective of this paper is the analysis of damages actions resulting by the breach of European antitrust rules. First of all, we briefly expose the Green Paper and the White Paper on antitrust damages actions. Then, we present the fundamentals and objectives of the “Proposal for a Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union”. Lastly, we present the solutions contained in this Proposal with regard to the creation of new mechanisms for access to evidences, binding effect of the decisions of the national competition authorities, limitation periods, joint and several liability, repercussion of additional costs, rebuttable presumption that a cartel causes damages, mechanisms for amicable settlement of disputes, and the changes that these suggestions could bring to the Portuguese legal system.

The control of concentration movements in order to avoid originating dominant position: the commitments in particular

Maria José Cardoso / Noémia Teles / José Neves Cruz

Antitrust, market power, competence, competitive advantage, monopoly; commitments

Global competition challenges firms and corporations to innovate and to develop competitive advantages in order to achieve market power. One of the major strategies involves acquisitions or mergers with competitors (horizontal concentration) or between firms located at different stages of the production and distribution chain (vertical) or between firms operating in markets that are not directly related (holdings). There are multiple motivations for these concentration movements, and among them is the achievement of market power in order to obtain a dominant position or the purpose of exclusive control (or access) to some kind of resource.

Divestment as punishment for cartel in Brazilian Law

Fábio Ulhoa Coelho

Competition Law, Brasilizn antitrust Law, Punishment for anticompetitive practices, Cartel

Brazilian Law provides for the antitrust authority power to punish anticompetitive practices through the mandatory sale of assets and businesses (disinvestment). However, the principles of the Democratic State and the proportionality of the punishment must be observed when this kind of punishment is applied. Moreover, this punishment may not obstruct the freedom of enterprise guaranteed by the Brazilian Constitution.

The Patentability of the Pharmaceutical Industry: The Public Interest in the Protection of Health

Carina Carvalho Magalhães

Propriedade Intelectual, Patente, Medicamento, Saúde, Autorização de Introdução no Mercado

On pharmaceutical law, in particular, and on the sphere of human rights, in general, two interests of a primordial nature prone to colliding: on one side, the concession of an exclusive right, resulting of a patent, and as such a legal monopoly (private interest); on the other, a protected access to medicines, allowing goods, considered a basic need, to be accessible to the public at affordable prices (public interest). This study encompasses these two approaches, using has guideline the Portuguese legal system.

State Aid to Football Clubs

João Miguel Parada Correia

State aid; Football Clubs; Sports; Competition Law; European Union; Internal Market

This article focuses on the theme of State aid, more specifically, the public aid granted to football sports clubs, and how these, similar to what happens in the other markets where competition laws prevail, may conflict with the national and european imperative of an unrestricted competition, free from distortions. It is intended, above all, to understand if there is a real submission of sport to the discipline of competition law, and, similarly, if there is an effective control of state aid in what concerns to football clubs.