RESPONSABILIZAÇÃO 360°: DESDOBRAMENTOS DE UM MOVIMENTO RESPONSIVO DISSUASÓRIO ESTIMULADO PELA AUTORIDADE DE DEFESA DA CONCORRÊNCIA

Abstract

Context: Like other jurisdictions and international bodies, Brazilian competition law characterizes bid-rigging cartels as the most serious type of anticompetitive conduct. Supported by the complex and multifaceted applicable legal framework, the competent national authority – the Administrative Council for Economic Defense (Cade) – has been proactively and diligently exercising initiatives for a holistic accountability of cartelists. Integrated with the legal system of multiple persecution of such agents, Cade has provoked individuals, organizations, and other governmental bodies, encouraging them, within the limits of their own respective competences and attributions, to seek sanctions of a civil, criminal nature and in the other administrative fronts. Objective: The text aims – through a dense empirical analysis – at confirming the occurrence of this important institutional movement of the authority in promoting a holistic legal accountability of offenders. This institutional movement herewith referred to as “Accountability 360°” is fully integrated into a legal and legislative framework that provides for multiple punitive responses to the cartel: administratively, criminally, and reparative (by means of civil liability). Method: Quantitative and qualitative analysis of cartel cases in public tenders decided by CADE’s Tribunal in the last five years. Based on CADE’s Electronic Information System (SEI) search tool, the percentage of cases in which the authority effectively promoted the 360° Accountability was checked and, in a complementary way, the merits of the decisions were analyzed. Conclusions: The results place Cade in a protagonist role of a holistic enforcement in the fight against bid-rigging cartels. In this role, the authority sanctions cartelists under the scope of the antitrust law and makes use of the multifaceted applicable legal system that provides for sanctions of various orders, such as criminal, administrative, and civil.