Article | Antitruste e regulação na economia digital | Plataformas e Mercados Digitais

Brazil’s Path towards Digital Ex Ante Competition Regulation – Remarks on the Brazilian Ministry of Finance 2024 Proposal

Brazil is on the verge of a significant regulatory shift, actively exploring the introduction of ex ante competition regulation designed to address potential harms from digital platforms before they become entrenched. Two initiatives have placed this debate at the forefront of the national policy agenda:

• Bill No. 2,768/2022 (the Bill) introduced to the Chamber of Deputies on 10 November 2022, and
• the Brazilian Ministry of Finance’s 2024 Proposal (the BMF Proposal) outlined in the report titled ‘Digital Platforms: Competition Aspects and Regulatory Recommendations for Brazil’ and published on 10 October 2024.

The push for ex ante regulation arises partly from the recognition that the distinctive features of digital markets present inherent challenges for traditional, reactive competition enforcement. These features include rapid scalability, data accumulation advantages, substantial switching costs, network effects, significant economies of scale and scope, and expanding complex digital ecosystems. They raise significant economic and policy concerns beyond traditional competition issues, as they affect the broader distribution of economic value in digital markets, potentially entrenching an environment where digital dividends remain concentrated among a few dominant platforms.

Brazil’s competition authority, the Administrative Council for Economic Defense (CADE, in Portuguese acronym), has nearly three decades of experience enforcing competition law in digital markets, having reviewed mergers and investigated anticompetitive conduct in these sectors since at least 1995. This experience has provided CADE with insights into the limitations of ex post enforcement, prompting its current support for a complementary ex ante regulation​. Notably, in its submission to the Ministry of Finance’s public consultation in 2024, CADE acknowledged that digital market dynamics pose systemic competition risks that exceed the capability of traditional enforcement alone.

In this blog post, we explore the two abovementioned digital initiatives in Brazil. We first explore Bill No. 2,768/2022, examining its development, key features, and factors that contributed to its legislative stagnation. Then, we turn to the BMF Proposal, highlighting its key features, analysing the feedback received in the consultation process, and discussing potential next steps for digital platform regulation in Brazil.

Key provisions and regulatory framework of Bill No. 2,768/2022

Bill No. 2,768/2022 was introduced in the Chamber of Deputies by Congressman João Maia on 10 November 2022. It is commonly referred to as the ‘Brazilian DMA’, because it mirrored concepts from the EU’s Digital Markets Act (DMA). The Bill targets digital service providers that serve the Brazilian public. It sets out a revenue threshold for designation, presuming a platform controls ‘essential access’ if it has annual revenue in Brazil of at least BRL 70 million (approximately USD 11.5 million). However, this low threshold attracted significant criticism for potentially encompassing a broad range of platforms beyond the intended targets.

Additionally, rather than modifying existing competition law, the Bill proposes integrating the ex ante digital platform regime within Brazil’s telecommunications and internet legislation, designating the Brazil’s National Telecommunications Agency (ANATEL) as the primary regulator. Thus, ANATEL would be tasked with implementing, enforcing, and mediating disputes under the new regime. This decision was criticised, given that digital platforms’ businesses differ fundamentally from traditional utilities and telecommunications entities, raising concerns about regulatory misalignment.

The Bill outlines broad principles such as proportionality, non-arbitrariness, and cost-effectiveness, alongside ambitious policy goals (innovation promotion, reducing inequalities, and fostering interoperability). This ambitious scope, however, drew critique for being overly expansive and lacking clarity, risking inconsistent or arbitrary enforcement. Key regulatory obligations include:

• transparency obligations – platforms would be required to report detailed information on their operations to ANATEL;
• non-discrimination requirement – platforms are to offer services fairly and without discrimination, preventing them from favouring their own offerings or unjustly blocking competitors;
• data use and portability – the legislation requires adequate safeguards on platform data use, implicitly limiting the exploitation of user or business data while encouraging interoperability and data portability;
• access for business users – dominant platforms are prohibited from denying service to professional users dependent on their platforms;
• merger oversight – ANATEL would gain authority to review mergers involving designated platforms, even if these fell below traditional CADE thresholds. Critics view this as duplicating CADE’s functions, creating regulatory overlaps, and fostering inter-agency tensions.

Loss of legislative traction

Bill 2,768/2022 stalled in the Brazilian legislature. Procedurally, the bill faces a long road. The Speaker of the House directed it to four committees (Economic Development, Science & Tech/Communication, Finance & Tax, and Constitution & Justice)​. The Economic Development Committee was the first to review it, with Congresswoman Any Ortiz as rapporteur. However, by the end of 2023, no committee vote had occurred. In an effort to gather input, the rapporteur launched an online public consultation on the Bill’s text and digital markets regulation, which drew some stakeholder responses​. Yet, progress soon stalled. At a committee hearing, the rapporteur conceded that the bill ‘has not made much progress’, citing two reasons:

• the committee was waiting for developments on the ‘Fake News Bill’ (another high-profile internet regulation bill)​, and
• Congress decided to ‘observe how the DMA is being implemented in the EU’ to gather lessons before moving forward​.

In other words, Brazil’s legislature adopted a wait-and-see stance.

A broader political shift also played a role. With the Lula administration taking office in 2023, the Executive branch began formulating its own approach to digital regulation (through the Ministry of Finance), indicating a possible shift away from the Bill.

By 2024, the Bill had effectively lost legislative traction and remained stuck in the first committee with a lengthy path still ahead (several more committees and then the Senate)​. Observers noted that without an external push or consensus, it would likely languish and eventually be archived. Indeed, as of March 2025, while the Bill is still officially on the docket, its prospects are slim. This is because it was overshadowed by the parallel efforts of the Executive branch to craft a more workable ex ante regulatory approach.

The Brazilian Ministry of Finance 2024 proposal

After two rather uneventful years in terms of progressing with digital ex ante regulation, the Brazilian Ministry of Finance launched a public consultation (Call for Contributions SRE/MF 01/2024) to evaluate whether legislative amendments to the Brazilian Competition Law should include new ex ante regulations for digital platforms. This marked the Executive branch’s first direct move in the debate, running in parallel to (and independent from) the stalled Bill.

The consultation ran from 19 January 2024 to 2 May 2024, and aimed to gather feedback on whether amendments to existing law or a completely new regulatory framework would be most effective in managing platform-specific issues. Public input was also sought on which specific aspects of digital platforms should be subject to regulation and how state action can be coordinated to manage these issues. The Ministry’s background paper highlighted that digital platforms pose distinct competition concerns, requiring new or adapted theories of harm and competition tests to address platform-specific issues.

The Public Consultation was divided into four different topics:

• goals and regulatory rationale;
• sufficiency and the adequacy of the current model of economic regulation and competition defense;
• design of a possible pro-competitive economic regulatory model; and
• institutional structure for regulation and supervision.

The consultation received 72 contributions from a wide range of stakeholders, including businesses, digital platforms, think tanks, civil society organisations, and regulatory agencies. Based on the received feedback, the Ministry of Finance published a report in October 2024, outlining a proposed ex ante regulatory framework​.

The report finds that digital markets naturally tend toward concentration due to high fixed costs, negligible marginal costs, and self-reinforcing network effects. These factors create substantial switching costs, making it difficult for users to collectively move away from an incumbent—especially when platforms use strategies such as pre-installation defaults, single sign-on, and exclusive deals to maintain their dominance. The report also highlights that CADE’s existing competition tools, such as the requirement to provide dominance in a defined market and the lengthy process of investigating abuse of dominance cases, often fail to deliver timely or effective remedies. As a result, while legally robust, the current ex post competition framework does not prevent incumbents from entrenching their dominance in multi-sided digital markets. Moreover, it is ill-suited to address broader structural or ecosystem-wide concerns that extend beyond individual instances of anticompetitive conduct.

To address these gaps, the BMF proposal advocates for a complementary ex ante framework. Rather than replacing ex post enforcement, it introduces targeted ex ante measures tailored to platforms with ‘systemic relevance’ based on their market influence and business characteristics. If implemented, this framework would empower Brazil’s competition authority to impose tailored obligations and behavioural constraints on these platforms.

Further, the report outlines how the new regulation could interact with the existing competition framework, what problems they aim to solve, and which design features can be adopted from international experiences and tailored to the Brazil’s market dynamics. The proposed measures can be grouped into two categories:

New ex ante regime for ‘systematically relevant’ digital platforms

A key element of the new ex ante regime is the creation of a process to designate digital platforms as ‘systemically relevant’ to competition (analogous to the DMA’s gatekeepers). To administer the new regime, the BMF proposal envisions enhancing CADE’s institutional capacity. Specifically, the proposal calls for a specialised digital markets unit within CADE. This unit would oversee the designation process, conduct the ‘stage-two’ investigations to define particular obligations, and monitor compliance. Its decisions would then be submitted to CADE’s Tribunal (the decision-making commission) for approval, effectively creating an ‘ex ante regulator’ function within the competition authority.

The designation criteria would rely on a combination of qualitative and quantitative thresholds:

• Qualitative criteria (to be defined in law) would include factors such as presence in multiple markets with strong network effects, strategic gatekeeping or controlling over essential digital structures for third parties, extensive vertical or diagonal integration across different ecosystems, and control over a volume of data that grants the ability to exclude or penalise potential rivals.
• Quantitative criteria would include minimum revenue thresholds (globally and in Brazil)​. Platforms below the revenue cutoffs would be exempt from designation, ensuring only major players fall under the new regulatory framework.

Upon designation as systemically relevant, platforms must comply with a set of proactive obligations and procedures, including:

• Merger notification: Designated platforms would be required to notify CADE of any planned acquisitions or mergers, irrespective of whether such transactions meet the usual revenue thresholds for mandatory review. This measure addresses the regulatory gap that allows large digital platforms to acquire smaller but significant tech firms without regulatory scrutiny.
• Transparency requirements: Designated platforms are obliged to maintain transparency toward end users and business users. This includes informing them of any changes to terms of service and providing essential information regarding the operational aspects of their services, particularly details pertinent to businesses reliant on the platform. The goal is to prevent opaque practices that could exploit users or business dependencies.
• Tailored obligations after investigation: The proposed framework introduces a two-step enforcement mechanism. First, CADE would be authorised to investigate whether a particular platform meets statutory criteria to be designated as ‘systemically relevant’. If so, then CADE may impose specific obligations that respond to the competitive vulnerabilities or potential problems that the platform’s business model raises. The guiding principle is that after a platform is found to hold systemic importance, certain conducts—such as using business users’ data to gain competitive advantage in adjacent services—would be presumptively problematic. This methodology is structurally similar to the German Bundeskartellamt approach under Section 19a of the GWB and the UK’s approach in the Digital Markets, Competition and Consumers Act. The BMF proposal also allows designated platforms to present ‘objective justifications’ for its practices. Importantly, the burden of proof is shifted to the platform to demonstrate that any contested practice is objectively justified and does not harm competition​. This inversion of proof aims to overcome the information asymmetry and delays that often hinder competition enforcement. Once a tailor-made set of obligations or prohibitions is in place, a breach would expose the platform to administrative fines of up to 20% of its group turnover in Brazil, in line with the maximum sanction under the Brazilian Competition Law.
• Cooperation with sectoral regulators: Where technical or sector-specific expertise is needed, CADE would coordinate with other regulators like ANATEL or the National Data Protection Authority (ANPD) in designing and enforcing obligations​. This cooperative approach acknowledges that digital markets cut across regulatory domains and seeks to avoid conflicts by establishing a formal collaboration mechanism.

Adjustments to the existing competition toolkit

In parallel to the new ex ante track, the Ministry’s report recommends multiple procedural and interpretative reforms to modernise existing competition enforcement, including:

• Updated analytical tools: Enhancements to CADE’s guidelines and internal analytical methods to better account for network effects, ecosystems, and new theories of harm in digital markets​. This includes evaluating how a dominant platform’s interconnected services affect competition and recognising data accumulation as a market power source.
• Merger review reforms: Revisions to CADE’s merger notification form to improve the identification of transactions involving platforms with large user bases, strong network effects, or high data synergy. Additionally, CADE may apply the ‘ordinary procedure’ (full in-depth review) more often for mergers involving large digital platforms, even if they meet only basic thresholds, to allow a more detailed analysis of potentially complex effects​. The proposal also suggests raising or adjusting the revenue thresholds that trigger merger notifications​, focusing enforcement on transactions most relevant to competition concerns. It also calls for a more strategic use of an under-utilised mechanism that allows CADE to demand the filing of non-notifiable transactions that raise competition concerns.
• Market studies authority: CADE’s ability to conduct market studies or sector inquiries would be reinforced, granting it powers to demand information and study digital sectors proactively​. This can help identify nascent issues or monitor compliance in digital markets without relying solely on formal complaints.

Final remarks and next steps

The Ministry of Finance emphasised that regulatory intervention would aim to be applied to a limited number of digital platforms, setting high criteria and balanced measures to prevent excessive regulatory burdens. The overarching goal is to foster competition and innovation by keeping dominant platforms in check while minimising the regulatory impact on smaller companies and new entrants.

The BMF proposal received considerable interest from stakeholders and researchers. As expected, opposition came primarily from representatives of the major digital platforms and associated business groups. The Latin American Internet Association (ALAI), which represents companies such as Google, Meta and Amazon, strongly criticised the proposal, arguing that it lacked a clear diagnosis of market failures in Brazil that would justify ex ante regulation. Camara-e.net, a Brazilian digital economy trade group, echoed these concerns, warning that regulations inspired by foreign experiences could anticipate problems that have not materialised in Brazil. Similarly, international industry groups including the Computer & Communications Industry Association (CCIA) welcomed the BMF’s consultative approach and recognition of CADE’s role, but urged a principles-based, proportionate framework, noting that ex ante regimes in other jurisdictions remain experimental and potentially burdensome.

In contrast, several civil society organisations and academic commentators welcomed the Ministry’s initiative as a long-overdue effort to curb the market power of dominant digital platforms. A coalition of over 100 civil society organisations and academic institutions had previously called for specific economic regulations to complement antitrust enforcement and promote transparency, accountability, and fairness in the digital economy. The Data Privacy Brasil Research Association praised the Ministry’s proposal as a necessary step to ensure that competition policy addresses broader public interest concerns, including consumer rights and democratic accountability. Academic observers noted that the final report marked a departure from earlier legislative drafts by centring enforcement within CADE and tailoring obligations to Brazil’s institutional and economic context, a strategy seen as more viable and coherent than simply transposing EU-style regulation.

Notably, CADE itself expressed support for the proposed expansion of its mandate. In its formal submission, the authority acknowledged the limitations of traditional antitrust tools in addressing challenges posed by digital platforms and welcomed the opportunity to apply preventive, market-specific obligations. However, the authority refrained from providing a comprehensive roadmap for structuring the new regime, leaving open questions about how these obligations would be defined, enforced, and monitored in practice.

The path forward involves several steps:

1. Drafting of legislation: The Executive branch (Ministry of Finance, possibly in coordination with the Ministry of Justice/CADE) will prepare a draft bill to implement the proposed framework. This is expected to take the form of amendments to Brazil’s Competition Law (Law No. 12,529/2011). By embedding the ex ante regime into existing competition law, the drafters aim to formally empower CADE with the new designation and enforcement tools, specifying thresholds and potential obligations.
2. Introduction to Congress: Once the bill is finalised, the government is expected to introduce it to the National Congress​. Upon introduction, the bill will be assigned to the relevant committees for review. Alternatively, there is a possibility that the new content could be merged into or replace Bill No. 2,768/2022 through a legislative amendment process. Regardless of the mechanism, congressional debate will be needed, including committee reports, possible public hearings or expert input, and votes in both the Chamber of Deputies and the Senate.
3. Timeline and challenges: The Minister of Finance’s presentation of the government’s 2025 legislative priorities explicitly listed the proposal as a means to ‘improve the business environment’ in Brazil—indicating that the government will push for it as part of its broader economic reform package. Nonetheless, the legislative calendar imposes constraints. Ideally, the bill should advance in 2025, before the political focus shifts towards the 2026 elections. Election years typically set back lawmaking, as contentious reforms become more challenging to pass. Therefore, the mid-term timing is critical. If progress stalls, as it did with the previous digital regulation bill, the likelihood of enactment may diminish significantly. The current administration’s relationship with Congress will also be a deciding factor. Although it has already managed to pass contentious measures like a new fiscal framework and tax reform, pushing through an ex ante proposal for digital platforms will demand no less of a political effort. Additionally, any effort to rein in big tech is likely to encounter strong resistance from large digital platforms and their affiliates, such as think tanks and other supportive organisations, especially considering the international political climate, which may include potential opposition from the Trump administration.
4. Regulatory implementation: If the legislation is approved, implementation will become the key challenge. A primary concern is the institutional capacity of CADE, which will need sufficient staffing and funding to exercise its new functions. The agency will have to establish the dedicated digital markets unit envisioned by the proposal, develop guidelines and internal procedures for the designation process and for designing specific obligations, and then effectively enforce these new rules. This may involve conducting comprehensive market studies and further consultation processes to determine which platforms meet regulatory criteria, followed by formal designations and the imposition of tailored obligations. The agency will also need to coordinate with sectoral regulators like ANATEL and the ANPD to draw on technical expertise and avoid conflicts. In short, the enforcement architecture will require significant preparation and possibly a cultural shift from its traditional ex post case-by-case enforcement towards a proactive regulatory oversight role. Ensuring that the agency has the budget, expert personnel, and legal tools in place will be crucial for the regime’s success—under-resourcing the effort could undermine the effectiveness of the entire regime. The authority’s demonstrated openness to the new mandate and its experience drawn from past digital market cases should help, but scaling up capabilities doesn’t come without hurdles.

The coming months will be crucial in determining whether this regulatory transformation gains traction. If Brazilian lawmakers move forward, the scope and strength of this new regime will ultimately shape whether Brazil’s competition authority emerges as a proactive digital regulator or remains reactive to the challenges posed by digital markets.

This text was written by Anna Moskal (Monash University) and Marcella Brandão Flores da Cunha (University of Melbourne), and published on April 4, 2025, on the Kluwer Competition Law Blog.