The technical-legal analysis of CADE Administrative Proceeding No. 08700.000270/2018-72 (Bayer/Monsanto) and its implications for intellectual property and farmers' productive autonomy

Abstract

This article provides a legal analysis of Administrative Proceeding No. 08700.000270/2018-72, conducted by Brazil's Administrative Council for Economic Defense (CADE) to investigate alleged anticompetitive practices in the soybean biotechnology, plant breeding, and seed multiplication markets. Based on an integrated examination of Technical Notes no. 18/2023/DEE/CADE, no. 100/2023/CGAA11/SGA1/SG/CADE, and no. 57/2026/CGAA11/SGA1/SG/CADE, the study reconstructs the evidentiary development of the case and identifies the coexistence of two distinct standards for establishing antitrust liability under Article 36 of Law No. 12,529/2011. Whereas the breeding incentives practice was supported by evidence of actual anticompetitive effects, liability concerning the Monsoy Multiplica Program relied primarily on its potential to restrict competition through its contractual structure. The article argues that this distinction illustrates the flexibility of the Brazilian competition law system while highlighting the need for clearer criteria governing the use of each evidentiary standard. It further demonstrates that the asymmetry between Brazil's Industrial Property Law (Law No. 9,279/1996) and Plant Variety Protection Law (Law No. 9,456/1997) creates structural incentives favoring patented biotechnologies, with significant implications for market competition and farmers' productive autonomy. The study concludes that competition law enforcement, although essential, cannot by itself address the structural effects of this regulatory asymmetry, which ultimately requires legislative harmonization of the two intellectual property regimes.