Avalia os impactos regulatórios e institucionais do Projeto de Lei nº 2.768/2022 sobre a segurança jurídica no Brasil, especialmente no tocante à vedação de práticas de self-preferencing por plataformas digitais com “poder de controle de acesso essencial”. A análise confronta os dispositivos do PL com a jurisprudência do CADE nos últimos 10 anos, considerando os potenciais conflitos entre a aplicação ex-ante das regras propostas e o modelo ex-post adotado na análise concorrencial pelo CADE.

The main hypothesis tested is: if the bill were in force, would there be significant differences between decisions applying the text of the bill and past decisions by CADE?

For the methodology, emblematic cases were compared in light of four interpretative scenarios of the bill, ranging from categorical prohibition to application compatible with traditional antitrust methodology. Conviction and regulatory conflict rates were measured in each scenario.

• Scenario 1 – Categorical Prohibition: 77% divergence from CADE case law, disregarding commercial justifications and potential consumer benefits.

• Scenario 2-A – Strict Conditional Rules with Exceptions: A 16% divergence and rules that are more lenient than CADE's jurisprudence, including in traditional markets.

• Scenario 2-B – Conditional Contribution Rules: 44% divergence, includes weighting of justifications, but without methodological hierarchy.

• Scenario 3 – Traditional Antitrust: Total convergence with CADE, but with duplication of regulatory powers.

The Fragility of the Concept of “Essential Access Control Power”: by adopting criteria similar to the gatekeeper concept, based on revenue rather than market power, which may result in disproportionate obligations.

Risk of Conviction without Evidence of Competitive Harm: Conduct that CADE considered pro-competitive could be condemned under the bill, even in the absence of market power or harm to consumers.

Inadequacy of Rules per se: CADE's experience shows that self-preferencing can bring efficiencies and improvements to consumers. There is no legal consensus or stability of precedent that justifies its ex ante prohibition.

Regulatory Asymmetry and Legal Uncertainty: The bill creates asymmetric obligations for specific platforms without robust criteria, which compromises regulatory predictability and may discourage innovation.

High Risk of Suboptimal Decisions: The absence of a structured methodology (such as that used in antitrust law) can result in both over-inclusions (unjustified convictions) and under-inclusions (permitted anti-competitive conduct), undermining the effectiveness of regulation.