A (in)suficiência dos critérios da Lei 12.529/2011 no controle de aquisições baseadas em dados

Abstract

This present work intends to analyze the insufficiency of the criteria of law 12.529/2011 in the control of data-driven acquisitions. It is assumed that the existence of a market focused on intangible goods, such as data control, and with low-cost services for consumers faces traditionalist competition control. In this sense, the model used by digital platforms, using BigData as a tool to exercise market power and, effectively, as an economic asset, can put at risk the competitive practice and consumers. This finding requires understanding the classic criteria and foundations of merger control to then question whether they are still useful for evaluating the business models in question. To illustrate the challenges at hand, the main aspects of Facebook's acquisition of Instagram will be analyzed. Finally, it raises the need for dialogue between CADE and other authorities able to contribute and presents new postures for control adequacy. It is concluded that the business models of technology companies require a new look under the consolidated concentration control criteria provided in Brazilian legislation.