Cooperatives in the oligopolistic context: an issue for economic criminal law discussion

Abstract

Distinguishing a cooperative to a cartel formation looks like easy. In fact, most of the time, it is. But, there are situations where appear difficulties. And, when some of it appears, can be a stormy issue to the Criminal Economic Law, if cartel was a sort of abstract danger crime. Because, in some oligopolistic situations, it means, when horizontal economic entities seize relevant competitive variables through the organization of a cooperative, the open membership cooperative principle can produce in it the same abstract characteristics of a cartel. The theoretical problem is presented by the case method, by the cases study of anesthesiologists cooperatives that were submitted to the Brazilian antitrust authority. These cases called into question the abstract concept in ex ante formulation, in favor of maintaining an ex post approach, so that the criminal enforcement can be legitimized only if, in fact, the conduct is manifestly harmful, which regains guilt for the problem.