Exclusividade territorial no contrato de distribuição sob a ótica do direito concorrencial

Abstract

The objective of this study was to address the effects of the territorial exclusivity, agreed on a distribution contract, on the economic market. The manufacturer of a given product may define, as a better business strategy, to enter into distribution agreements with the establishment of a territorial division of resale, giving exclusivity to distributors, as legally permitted by the Brazilian Civil Code. However, this practice may have negative effects on the economic market, possibly resulting in a vertical constraint from the point of view of the Competition Law, which would require the interference of the responsible Brazilian public agency CADE - Conselho Administrativo de Defesa Econômica (Economic Defense Administration Counsel). Therefore, the distribution agreement, with the focus on territorial exclusivity clause, will be studied in Chapter 01. On Chapter 02, an introduction will be made to the Competition Law, with a primary focus on agreements and vertical restraints. On Chapter 03, the objective will be presented and addressed, ending with the approach of Brazilian cases, judged by CADE, based on the concepts and doctrines treated in the early chapters of this work. Finally, it will be concluded that the effects of the practice of territorial exclusivity in the distribution agreement shall be observed, considering that they may be harmful to society and to the economic market, under Constitutional Law perspective – in reason of the fundamental principles of the Economic Order - and Competition Law. Hence, the criteria defined by CADE shall be analyzed, such as the distributor economic market participation, the objective of the practice, the consequences to the market, as well as to the contracting parties (manufacturer and distributor)