Abuse of Regulatory Power : A Step Forward in the Journey Towards Effective Competition Advocacy in the Public Sector, Regulatory Improvement and Oversight?

Section 1 summarizes the development of competition advocacy in the public sector/“public advocacy” in Brazil (GUIMARAES 2015). Section 2 highlights the problem/lack of effectiveness of SEAE competition advocacy nonbinding opinions, and reports significant stakeholder engagement addressing the problem for the last 10 years (IBRAC 2016 and OAB 2012). Section 3 describes additional public advocacy developments by means of the work carried out by the OPP in 2016-18, notably the Guidelines and Guidebook for Regulatory Impact Analysis – RIA (OPP 2018), which raised the issue of (at least) occasional need for antitrust analysis in the RIA proceedings, by either SEAE or CADE. After the paper’s exploration of the necessary preceding developments, the core abuse of regulatory power issues are addressed in section 4 and its subsections: 4.1 analyses the congressional scrutiny of the abuse, again based on IBRAC 2016 and OAB 2012, but this time adding the legislative proposals PLV 17/2019 / PL 6517/2019 to the comparison; 4.2 summarizes the alternative chosen by SEAE to make the abuse enforceable, the SEAE Regulation (Normative Instruction) 97/20; 4.3 reports the significant criticism the abuse of regulatory power and SEAE Regulation has been facing from the Brazilian regulatory and antitrust communities, is spite of the Secretariat’s choice of the least solid legal instrument to make the abuse an effective legal provision; 4.4, mostly based on OECD 2019, brings comparative law and policy experiences on how competition and regulatory authorities interact regarding laws and regulations enforced and designed by the latter; 4.5 closes the paper briefly exploring Brazil’s possibilities of establishing a regulatory oversight body (ROB), not only based on comparative experiences, but also in light of the early developments of the issue in the country (IBRAC 2019)