The São Paulo Court vetoed exclusivity clauses imposed by 99Food on partner restaurants. The instruments offer financial benefits, such as more attractive rates, to partner establishments, but prohibit restaurants from operating with other delivery platforms such as Keeta, author of the action.
Keeta is a delivery app that belongs to the Chinese group Meituan, and should begin operations in Brazil by the end of this year. In the action, the company argues that it is suffering from an “illicit barrier” by 99Food in the food delivery market, “with the aim of preventing free competition and ‘banning’ Keeta from the market”.
For judge Fábio Henrique Prado de Toledo, of the 3rd Business and Arbitration Conflict Court of the Court of Justice of São Paulo (TJSP), the practice violates the constitutional principles of free competition and equality.
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In addition to determining the suspension of the exclusivity clauses that bar Keeta, the decision also prohibits 99Food from applying any type of penalty to restaurants that have the exclusivity clause but that choose to enter into partnerships with the competing platform. The judge also determined a fine of R$100,000 if new contracts with exclusivity clauses are signed.
‘Semi-exclusivity’
Controlled by the Chinese group DiDi, a global mobility giant, 99 returned to the food delivery market this year, after leaving the sector in 2023. The recovery began in Goiânia and São Paulo, and arrived in Rio de Janeiro on the 15th.
At the platform’s launch event in Rio, the general director of 99 in Brazil, Simeng Wang, explained that the company offers partner establishments contracts with or without exclusivity, for up to two years, with rates and commissions that vary.
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Furthermore, there is a model called “semi-exclusive”, in which the restaurant accesses more advantageous rates, but continues to operate with iFood, which dominates 80% of the market. However, “it chooses not to work with potential new entrants”, according to the executive. This is the object of Keeta’s questioning.
99Food recorre
The Meituan platform said in a statement that, by investing in Brazil, it “made a commitment to the development of a market where everyone can have more choices”, and that, with the decision, restaurants “are free to decide on the platform that offers the best service”.
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99Food said it will appeal the decision. To GLOBO, 99’s Communications Director, Bruno Rossini, argued that the company’s conduct “is legal and complies with all regulatory practices”.
— We will appeal not only because we think that our side needs to be well appreciated but because we want to consolidate innovative practices that can guarantee long-term investment in Brazil — he said.
The company does not release numbers, but states that “only hundreds” of restaurants are under semi-exclusivity clauses, which represents a “very small” percentage of the universe of establishments registered on the platform.
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The executive argued that exclusive contracts (partial or not) are important to “break the inertia” and stimulate competition in the food delivery market in the country, which has 80% of operations dominated by iFood, according to industry estimates.
When asked if limiting the activities of competitors is not a behavior contradictory to what they preach, he stated that the company does not have the “strength” to force restaurants to opt for exclusivity, but that they offer options to establishments.
— We are protecting the space we conquered. If we don’t do this, there will be a “shock” of companies entering the market to compete for the 20% that does not belong to iFood — assesses Rossini. — We are entering the market and we need to maintain ourselves. (The two years of the contract) are a short period for us to establish ourselves and develop the market.
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Fight also at Cade
In parallel to the fight in the courts, Keeta and 99Food are also fighting a dispute at the Administrative Council for Economic Defense (Cade), which regulates competition. Keeta accuses 99Food of blocking its entry into the delivery market with exclusivity contracts, what it calls a “ban clause”.
More recently, Rappi entered the delivery war, and asked to be part of the process opened at Cade, claiming that the prohibition on establishments maintaining a commercial relationship with Rappi in the contractual clauses with restaurants made by 99 was being included.
