Laércio Farina and Denis A. Guimarães - January 13th, 2016
Published in Valor Econômico newspaper on February 3, 2010, Legislation and Taxes
The press has reported the possibility that the National Congress will vote on the so-called lobbying regulation soon, more precisely after the appreciation of the bills covered by the so-called pre-salt regulatory framework. In view of the precepts and misunderstandings that surround the matter, that is, the association that is commonly made between lobby and corruption, it is important to make clear that lobby is nothing more than the representation of private interests before public agencies. Good news is that the president of the Chamber of Deputies, Michel Temer (PMDB-SP), has expressed favorably to the regulation of the lobby. The regulation has long-standing initiatives in the National Congress, of which Senator Marco Maciel (DEM-PE) deserves special mention, and its main objective is to provide transparency and enable the control of the activity of representing private interests before the Legislative and the executive. These are also the basis of the initiative bill of Congressman Carlos Zarattini (PT-SP), which was the subject of a seminar debate on legislative matters promoted by the National Confederation of Industry (CNI) in August last year. It is evident that there are innumerable types of interests that can be defended before the Legislative and the Executive. In the case of interests affected by business or practices that may impact on the conditions of competition in the most varied markets (monopolization, oligopolization, cartel formation and other practices), it is important that the main organs of the federal public administration influence the decisions of the The Ministry of Finance (SDE) of the Ministry of Finance and, finally, the Administrative Council for Economic Defense (Cade), which gives the final decisions of the Executive Branch. Competition policy is comprised of three pillars: merger control (acquisitions, mergers, etc.), control of cartels (cartels, exclusivity agreements, etc.) and competition law. This would be the "dissemination of knowledge about the benefits of free competition to society, entrepreneurs, judges, public prosecutors, legislators and regulators" (SDE's website). It happens that the simple disclosure of the work done by the antitrust agencies in the scope of the control of concentrations and conduct should not be understood as a genuine practice of competition law. This would be the effective interface between the antitrust authorities and, above all, other government authorities - such as regulatory agencies - as well as legislative authorities. Society, entrepreneurs, judges and public prosecutors are already largely subject to rights and obligations in the context of merger controls and conduct. There remains, above all, the need to increase the involvement of the Legislative and the Executive with the antitrust policy. They are producers of laws and regulations, who need to have contact with the specialized guidance of another body with normative power. That is where the greater importance of competition law lies. In this sense, it is worth noting the initiative of the Commission for the Study of Competition and Economic Regulation of the São Paulo branch of the Brazilian Bar Association (OAB-SP), which, in the scope of the reform bill for the Brazilian System for the Defense of Competition SBDC) in the Federal Senate (bill no. 06, of 2009), presented a suggestion of amendment to the project in order to proceduralize the competition advocacy activity, that is, to create a procedure (forms and deadlines) to be observed by Seae (which in the project stands as the SBDC's body responsible for this function) to respond to society's demands on the subject. This is because, if it is up to the antitrust agencies to exercise effective competition law, which may deserve due attention from the Legislative and other executive bodies, it is certainly up to society to bring about this kind of action by the antitrust authority. What can not happen is that competition law is subject to the absolute discretion of the BSC's bodies. Possible solution to impose limits on discretion is precisely proceduralization. With it, there is greater access of the economic agents to the public administration. In this way, companies increase the possibilities of defending their interests in defense of competition before technical bodies able to evaluate the convenience and opportunity of these demands. In other words, democratizing access to the public administration, but the prerogative of the specialized agencies remains to dictate the Executive's competition policy. The expansion of access to public administration, accompanied by the transparency inherent in the creation of a procedure, reduces the scope for illegitimate political influences, it is necessary that the representation of private interests, to be successful, win in technical quality. Still on the proposal of procedimentalization, it must be pointed out that the reform bill of the SBDC in process in the Senate radically changes the institutional model in which the competition advocacy activity is inserted. Today, this activity is in some way carried out by the three antitrust agencies. In PL 06, it becomes the Seae's assignment. That is, today Cade, the main competition body, with characteristics that have been agreed to designate a State body (basically: managers with fixed mandates and, therefore, protected from political influences), has among its responsibilities the competition. According to PL 06, this responsibility is attributed to a single governing body (managers occupying so-called positions of trust, demissible at any time and therefore obviously susceptible to political influences, in this case, Seae. It is expected that there will always be some who try to influence legislative and executive decisions by means of illicit methods, but the institution of greater transparency in the representation of private interests creates barriers to the success of obscure practices insofar as it allows other economic agents with opposing interests also to have access to public authorities whose coherence of decision can be observed by the whole society. It is hoped that the National Congress will engage in the debate on the and also that the SBDC, especially at this moment in which both is committed to the approval of a bill that requires a great extension of its structure, works for a policy of competition that can go beyond the advances already achieved since the promulgation of the current law - nº 8884, of 994.