Leniência como ferramenta de combate a cartéis: análise da experiência brasileira sob a ótica da eficiência econômica

• Ano de defesa: 2017
• Autor(a) principal: Douglas Miranda Mussi
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Federal de Minas Gerais; UFMG
• Palavras-chave em Português: Leniência; Cartel; Política de Defesa da Concorrência; Análise econômica do Direito; Direito econômico; Direito antitruste; Concorrência; Trustes industriais
• Link de acesso: http://hdl.handle.net/1843/BUOS-ASHGFG

One of the most important legal instruments to combat cartels is leniency, which represents a promise of benevolent treatment for the agent who cooperates voluntarily in the detection of the infraction and punishment of the other participants. In the last decades, several studies have shown that this institute is, in theory, capable of influencing market agents choices, avoiding the formation of cartels, as well as revealing already existing collusive agreements and facilitating the application of sanctions to those involved. The success of a given leniency program, however, must be measured by the socioeconomic gains that it can generate, which consists on reducing the number of cartels in the economy. Data on the number of discovered cartels, celebrated agreements or applied fines, therefore, do not serve to support firm conclusions on the efficiency of a leniency program, since they say nothing about the amount of undiscovered assets cartels. Taking into account the methodological difficulties that are imposed on the subject, the present work, starting from the systematization of the theoretical bases built by the specialized literature, presents an analysis of the Brazilian Leniency Program, by comparing it with the pioneering experiences in the use of the mechanism in the United States of America and in the European Union, which served as inspiration for the Brazilian model. It is hypothesized that, despite the growing relevance of the institute within the scope of the Brazilian Competition Policy, there is still room for improvement of its results in the fight against cartels. This prognosis is confirmed, to a large extent, by the fact that in both paradigm jurisdictions important changes took place, both in the configuration of the institute itself and in external defense policy factors that were not followed in Brazil. These changes include the extension of the effects of leniency to the field of civil liability, the regulation of confidentiality of information and evidence provided by the offender, the hardening of penalties for infringement, and the constant increase of resources for investigation activities of the antitrust authority.