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The current Brazilian Constitution, promulgated in 1988 under the anxiety and lack of popular political leaders, lost the opportunity to have a strong content, definitive, anchored mainly on principles for, unfortunately, become a patchwork quilt of interests made to house specific and absolutely inappropriate for a letter magna.

At the time, however, amid the stormy debates of the National Constituent Assembly, there are a race of deaf all social segments with the goal clear, direct and public, to encourage members to include constituents in the text any article, paragraph or item that ultimately could be translated into protection of interests and beliefs of some segments, groups or corporations.

The bodies of the Consumer Protection ago were not, were also included in the midst of some policy guidelines for its aspirations, including the obligation of the State to promote consumer protection:

Federal Constitution

Article 5 - XXXII - the State will, in the form of law, consumer protection;

They also add to the entities in the Constitutional Act of the Transitory Provisions, Article 48, the levy to the National Congress to develop the Code of Consumer Protection with deadline of 04 (four) months.

48. The Congress, within one hundred twenty days of the promulgation of the Constitution, draw up code of consumer protection.

However, the biggest success of organizations of consumer protection, in search of a safe harbor for their claims, would remain in the insemination of the principles, more inclusive and open to the devices goals.

Is that the adoption of principles allows infinite actuality of constitutional protection, while the devices are always goals to deteriorate the economic-political-social.

With this reasoning was worked Article 170 of the Magna Carta, which governs the general principles of economic activity, so that would include, specifically, free competition, consumer protection, and with more depth, the social function of property.

Federal Constitution

Article 170. The economic order, based on the enhancement of human work and free initiative, aims to ensure decent existence for all, as the dictates of social justice, with the following principles:

III - the social function of property;

IV - free competition;

V - consumer protection;

It is known that free competition has always been the largest and most effective instrument of protection and consumer protection, but the constitutional recognition of the property must have social function, has become the major link in support of democratic and legal system support allowing more legal and policy measures capable of providing rescue or a balance in relations of consumption and citizenship.

Only with a clear expression of this magnitude is a principle that could thrive another device, objective, but in view of the contours which purchased the building in preparation, it was absolutely necessary, especially if the country is willing to start a new journey, towards a seat among the world powers.

The article, obviously, respect the principles enshrined in the recovery of the society as whole that houses, capital, labor and consumption, provides:

Article 173 - Section 4 - the law punish the abuse of economic power that aims to dominate the markets, the elimination of competition and the arbitrary increase of profits.

And, crowning this commandment Constitution, was sanctioned to the Law 8884/94, in addition to defining concepts and criteria in the field of control of economic abuse, more roominess and objectivity, has new contours to the CADE - Administrative Council for Economic Defense, and opened clearer perspective on the possibility of state intervention in private business where the collective interest is threatened.

Today, as an order cursed, a situation to materialize fully subject to the tangle of rules and ideas, asking for a measure based on the constitutional principles and the old wisdom that overflows in the relations of consumption:

Are the acquisitions of companies competing for the same economic group or major mergers between firms in the same industry, or the correct operation of consortia between previously competing companies, as with manufacturers of cleaning products, suppliers of food products, networks, supermarkets , brewers, airlines, etc..

Indeed we must assess whether these acquisitions, mergers and formation of consortia do not have an effective risk to the Brazilian consumer or could be perceived as a good weapon in international competition.

We can not ignore these major financial transactions have a greater economic focus to eliminate the competition that a large company accounted for the other, and that the power of who actually controls a particular sector of the economy may inhibit the emergence of new competitors.

The Antitrust Law provides, with absolute clarity:

Article 20. Constitute violation of the economic order, regardless of fault, the acts in whatever form manifested, which have the object or may have the following effects, although they are not achieved:

I - limit, or distort in any way hinder free competition or free enterprise;

II - dominated market of goods or services;

§ 2. Occurs when a dominant firm or group of companies controls substantial portion of the relevant market as supplier, broker, purchaser or financier of a product, service or technology relating to it.

§ 3. The dominant position to be mentioned in the preceding subparagraph is presumed when a company or group of companies, controls 20% (twenty percent) of the relevant market, this percentage can be changed by CADE for specific sectors of the economy.

In this context we can measure the value of private interest in pursuit of profit and power from dominating the market, contrasting the value of the collective interest, represented by the common consumer, betrayed by his unwanted marriage to his favorite brand to another, then taken as effective only way to vary the choice.

Thus, when the economic power eliminates the possibility of choice, kill the competition, and is free to practice the price and conditions of sale that you want, we, the obvious abuse of economic power.

The abuse of economic power have been previously listed by the law and, in effect, it is now may assert that the principles included in the Federal Constitution and ordinary laws, in force, intended to protect the collective interests of the attacks against the social, of injury to consumers and the imbalance in the relations of consumption.

Vale said, without fear of making mistakes, that the social function of property, called the Federal Constitution, limits the action of economic power, can stop it or adapt it to better serve social interests.

Therefore, when the institutions fail, in this case the CADE - Administrative Council for Economic Defense, the civil society should seek, in court, the inhibition of these mega acquisitions, mergers and business consortiums representing any evidence of elimination of competition.

After all, despite also imagining these assumptions is that the legislature, the forceps ", also available in Antitrust Law:

Law 8884/94

29 - The prejudiced by it or its legitimacy from Article 82 of Law 8078 of 11 September l990, may enter into court for, in defense of their individual interests or individual homogeneous, obtain the cessation of practices that constitute violation the economic order and the receipt of damages suffered, regardless of the administrative process, which will not be suspended under the wise action.

And finally, in the event of legal options also fail, consumers could still develop a long and hard work of fighting on several fronts, from the products of powerful companies that blur the balanced relationship of consumption and, in search of profits easy, free to ride roughshod over the competition.

Moreover, these measures are already reality in many countries, there are cases of systematic evaluation of product quality, monitoring of compliance of the tax and tax businesses, demand for compliance with environmental legislation and, finally, the adoption of boycotts of products or companies, among dozens of other measures actually harmful to the interests of entrepreneurs notoriously devoid of sense of social responsibility.

Admittedly, these measures, more aggressive, but no less legitimate than traditional, will be extremely efficient in this new globalized world, because they represent a true and ferina revolution in the relations of consumption in the fight to eliminate the competition and the effective end of the social function the property.