Acordo de leniência: fundamentos do instituto e os problemas de seu transplante ao ordenamento jurídico brasileiro

Abstract

Internationally, leniency agreements are seen as a State tool for antitrust enforcement that rely on the collaboration of one of the colluding parties in a cartel. As in the prisoner s dilemma , to be an effective enforcement tool, the colluding party must perceive that collaboration with the State is his most rational alternative, compared to remaining silent or continuing with the unlawful activities. Therefore, the effectiveness of leniency agreements depends on a legal and institutional environment which promote the appropriate incentives to the potential collaborators. The Brazilian experience with leniency agreements deviates somewhat from international experience for two main reasons. First, the reach of Brazilian leniency programs goes beyond the antitrust arena. Second, and most importantly, these programs coexist with many other norms and institutions which aim to protect the same interests. Given this normative and institutional overlap, the potential collaborator will have more difficulty in assessing the real costs and benefits of collaborating with the State.The main purpose of this paper is to verify if the transposition of leniency agreements into the Brazilian legal order is compatible with the economic theory that inspired them. To this end, we will first study the history, the objectives and the foundations of leniency programs considering the economic theory that inspired them. Afterwards, we will present the leniency program outlined by the National Legislator in order to compare if its institutional design is compatible with the economic theory it derived from. In this second section, we will indicate the ways in which the conflicting norms and the number of different state entities which are competent to prosecute cartels and other illicit acts covered by the leniency agreements may be an obstacle to the optimal application of the leniency program. Lastly, we will suggest how the national leniency program could be strengthened to make it a more effective enforcement tool.