As Brazil Seeks to Enforce Competition Law Against Digital Platforms, Here's What it Could Learn from the EU

Megan Kirkwood and Laís Martins are fellows at Tech Policy Press.

Last month, Brazil's national competition agency, the Council on Economic Defense (CADE), held a public hearing to collect input for its ongoing investigations against Apple and Google over conflicts related to their app stores. This rare move—possibly a first— in which CADE held a public hearing, was seen as a change of tone for the traditionally closed-off and opaque Council. It may signal a new willingness by the agency to engage with other sectors as it begins efforts to regulate digital markets.

CADE's move is not an isolated one. Last year, the Economy Ministry launched a public consultation on economic and competition regulation of digital platforms. One of the aims was to gauge whether Brazil’s current competition legislation, under which CADE operates, is adequate to “deal with the complexities of digital platforms” and whether the government needs a new regulatory framework.

While the processes are still ongoing, civil society organizations concerned with freedom of speech and the intersection of technology and democracy more broadly see Brazil's turn toward regulation of digital markets as a promising path. They view antitrust and competition laws as means to safeguard other fundamental rights, especially where previous legislative efforts, such as the Fake News Bill, have fallen short.

In October, the Economy Ministry published a report proposing legal measures to improve economic regulation. The report highlighted a mismatch between the dynamics of digital platforms and Brazil's current competition tools.

In the coming months, the ministry is expected to submit a bill to Congress to expand CADE's regulatory powers against big tech, including a framework for the agency to designate platforms with “systematic relevance” and impose certain obligations.

A New Beginning for CADE and New Challenges

In 2022, CADE opened its investigation into Apple after a complaint by the Argentine e-commerce giant, Mercado Libre, in which it accused Apple of forcing developers to use its in-app payment system to sell goods or services in their apps. Last November, the CADE ruled that Apple must allow apps to be distributed outside the App Store in Brazil. Apple then appealed the decision.

After holding the public hearing earlier this year, CADE again ordered Apple to allow sideloading, downloading apps outside the App Store, and alternative payment methods to Apple’s in-app payment within 90 days. CADE argued that Apple’s restrictions impede new competitors from entering the market. Apple again appealed, and a federal judge ruled against an injunction requiring the company to comply, finding that the decision was premature. This means Apple does not yet need to open its operating system, though CADE still has the option to challenge the decision.

If CADE’s challenge is successful in cracking open Apple’s walled garden, we might look to other jurisdictions to see what effect this might have. The judge’s ruling made specific reference to the fact that Apple “has already complied with similar obligations in other countries, without demonstrating a significant impact or irreparable damage to its business model.” In the European Union, Apple has also been forced to allow app sideloading and alternative payments under the bloc's Digital Markets Act (DMA), an ex-ante competition rule book aimed at the biggest tech giants.

While Apple has technically complied with sideloading in the EU, the company has introduced onerous fees and stringent requirements to offer third-party apps. For this reason, the tech giant has often been accused of “malicious compliance,” and the European Commission is investigating whether Apple’s new terms violate the DMA.

Specifically, the Commission has taken issue with Apple’s fees, the “multi-step user journey to download and install alternative app stores or apps on iPhones,” and the eligibility requirements for developers to offer alternative app stores or directly distribute apps from the web on iPhones. Getting Apple to open its famously closed ecosystem has posed a challenge, with Apple often arguing that such provisions threaten the security and integrity of its systems.

Similarly, South Korea, following amendments to its Telecommunications Business Act, requires Apple to allow alternative payment methods for in-app purchases. Looking at the terms for developers in the country, they closely reflect those imposed by the DMA, but with commission fees collected by Apple on transactions reaching as high as 26%. Therefore, if CADE imposes similar obligations to the EU and South Korea, Apple will likely respond with comparable tactics while dragging its feet on compliance at every possible turn.

CADE to Focus on More Digital Platforms

In December 2024, CADE expanded its scrutiny to Google when it became the target of an investigation into restrictive practices related to the Google Play Store. CADE received several complaints accusing Google of abusing its dominant market position to impose unfavorable terms and conditions on developers.

The Apple and Google cases have served as a pretext for CADE to look more broadly at digital platforms. “This public hearing is not designed to discuss a specific case, but to discuss the topic, having in mind a diversity of cases at CADE around it," said Alexandre Barreto, CADE's general superintendent, during the opening of the session. Barreto added that in the last few years, CADE has handled 41 cases involving digital markets, of which 30 have been concluded.

In an interview with Raquel da Cruz Lima, Head of the Legal Reference Center at Article 19 Brazil, she emphasized how the hearing was important to expanding CADE’s role in digital regulation. “They held this public hearing not only about the specific contours of the cases, but about this problem at large. This builds the legitimacy of this legislative movement that aims to reinforce CADE's position in economic regulation of digital markets,” she said.

However, Lima added, “the opportunities CADE has had to date to look at digital markets have hardly brought a relevant repertoire for what concerns us today in relation to the scenario of the online communication environment," highlighting that she speaks from a standpoint of concern about freedom of speech and other fundamental human rights.

This concern is not only about competition, strictly speaking, but about how current digital markets, especially in relation to access and exchange of information, have an “absurd concentration of power that unbalances the dynamics of power, including geopolitically,” added the lawyer.

Keeping Doors Open for Public Input

CADE and the Economy Ministry appear to recognize the scale of the challenge and understand that it might perhaps require a change of attitude. Lima was among those surprised when the council called a public hearing for the Apple case -- but hardly the only one. In her remarks during the hearing, the digital rights secretary at the Ministry of Justice, Lilian Cintra de Melo, said it was a “historic day at CADE."

More than 30 organizations signed up to participate, taking advantage of the rare window of opportunity CADE had opened to influence the policy discussion. Lima explained that the surprise comes partly because CADE, unlike other government agencies, has no legal mandate for public participation. There is nothing in the legislation that created the antitrust watchdog that mandates social participation.

This inexperience could pose a challenge as the cases progress and CADE dives deeper into digital market regulation. Although this new openness is welcome, ensuring that civil society maintains meaningful influence will be difficult, especially as the private sector will readily populate the space with allied civil society organizations and think-tanks.

However, CADE's traditional ‘behind-closed-doors’ way of doing business may also be beneficial. This is because the negotiation style the council is accustomed to could come in handy when dealing with platforms, said Lima. Because it is not a government organization from the judicial system, CADE's proceedings are less rigid and bureaucratic, which means decision-making is oftentimes more flexible and participative.

“The size and scale of these companies mean there is no scenario in which you simply pass over them. They have to take part in some sort of consultation and long-term process to ensure implementation. I don't think any measures that are extremely heavy-handed and sudden have a real chance of applicability,” said Lima.

If there is anything to be learnt from the DMA experience so far, it is that companies like Apple will go to great lengths to try to take over negotiations and exert pressure to water down the rules and obligations. CADE, therefore, has much to gain from keeping its doors open to contributions from a variety of actors, ensuring there are more voices to counter the pressures from the gatekeepers. The experience of other jurisdictions has also shown which challenges are likely to surface, giving regulators around the world the opportunity to introduce measures that might address them.