*Originally published on JOTA.

**This is an AI-powered machine translation of the original text in Portuguese.

The legislative proposal currently under consideration in the National Congress (PL 2768/2022) reflects a recurring normative tension in the regulation of digital platforms: the drive to anticipate competitive risks through ex ante rules versus the need to preserve space for contextual and evidence-based evaluation of specific conduct.

By proposing non-discrimination obligations in Article 10, without due articulation with Article 11, the bill ultimately compromises the necessary decision-making flexibility in cases of conduct that, within the Brazilian antitrust system, are traditionally assessed according to criteria such as market power, legitimate commercial justifications, and the existence of efficiencies.

Empirically, the study by the Legal Grounds Institute reveals that, in the last ten years, only 27% of discrimination cases were subject to condemnation by the Cade, with the remaining cases archived based on valid economic justifications or the absence of competitive harm.

Although the bill aims to increase rigor over "digital platforms with essential control of access," replacing an ex post approach (based on the rule of reason) with ex ante prohibitions could lead to condemnations incompatible with the logic and practice of Brazilian competition law — in some scenarios, generating conflicts with up to 77% of the consolidated jurisprudence of the Cade.

This dissonance is not only quantitative but structural. The definition of "essential control of access," inspired by the concept of gatekeeper in the European Digital Markets Act, breaks with the traditional market power criterion. In practice, this means that conduct that would be lawful — and even pro-competitive — under Cade's review could be deemed illegal based on the company's structural position, regardless of adverse effects for competitors or consumers.

Examples of practices such as self-preferencing show that many of these behaviors can have legitimate justifications. Making these practices automatically illegal, without considering their efficiencies or the competitive context, could undermine not only innovation and the security of digital ecosystems but also the institutional coherence of Brazilian enforcement.

Therefore, alternative legislative proposals — such as the one being developed within the Ministry of Finance — should take into account the accumulated jurisprudence, the available empirical data, and the institutional experience of the authorities already competent to regulate competitive conduct.

It is not about ignoring the challenges posed by digital markets, but about addressing them with calibrated instruments that combine legal certainty, regulatory proportionality, and respect for the expertise already built by the Brazilian antitrust system. The pursuit of clear and effective rules cannot come at the cost of losing nuance — especially in contexts of high technological complexity and accelerated competitive dynamics.