By: Leonardo Neri 

The Administrative Leniency Agreement, provided for in Law 12,529/2011, aims to detect, investigate and punish infractions against the economic order, to the extent that it allows the individual or legal entity involved or that has been involved in collective anticompetitive practices to collaborate with the investigations, reporting the practice to the antitrust authority and, in return, obtain benefits in the administrative and criminal spheres.

However, such benefits will only be granted if collaboration is effective, allowing the CADE authority to identify the others involved in the infraction and obtain information and documents that prove the reported or investigated infraction.

Furthermore, if effective, the consequences may reach not only the administrative sphere – with regard to the termination of the punitive action of the public administration or the reduction of one to two thirds of the applicable administrative penalties – but also the criminal sphere and, in this case, the statute of limitations may be suspended and the filing of the complaint against the agent benefiting from leniency may be prevented with regard to crimes against the economic order defined in the Law on Crimes Against the Economic Order (Law No. 8,137/1990), and other crimes directly related to the practice of cartels, such as those defined in the General Bidding Law (Law No. 8,666/1993) and in article 288 of the Penal Code, from the moment in which the CADE Court recognizes compliance with the obligations agreed upon in the agreement.

It is observed that both in cases of Leniency Agreement, as provided for in the Antitrust Law and the Anti-Corruption Law, as well as in the case of plea bargaining, there is an agreement between the State entity and an offender, with the latter receiving his punishment in a mild manner or not receiving it at all and the State withdrawing its punitive power to act in partnership with the offender.

Therefore, when substantiating a conviction based on the leniency agreement, the authority must be aware of the fact that the interpretations acquired with the agreement may be contaminated, since the signatories are biased.

Therefore, documentary proof of the allegations made by the lenient parties is necessary, which must undoubtedly demonstrate the causal link between the individual or legal entity and the violation, and the grounds for the decision must indicate the elements that resulted in the conviction of the cartel and its participation, given that the evidence produced in the context of an agreement has dubious probative value in view of the interest in receiving benefits.