The Administrative Council for Economic Defense (CADE) and the Public Prosecution of São Paulo (MPSP) have signed a Memorandum of Understanding for joint action to combat violations against the economic order, through settlement (an agreement negotiated by CADE, in the administrative sphere) and plea bargaining (an agreement negotiated by MPSP, in the criminal sphere). The MoU aims to strengthen the instruments of collaboration by sharing non-confidential data and investigative techniques between the authorities, thus making the criminal and administrative prosecutions of cartel more effective.
A Cartel is considered the most serious violation against the economic order, being administratively punished by the Competition Law (Law No. 12.529/2011) and criminally by the Crimes against Economic Order Law (Law No. 8.137/1990). For the punishment of this offense, administrative and criminal authorities employ collaborative agreements.
The leniency agreement is signed with the first offender interested in collaborating with CADE; this grants administrative and criminal immunities to its signatories, establishing an interaction between the two authorities for its conclusion. The settlement is the tool available to other offenders interested in negotiating with CADE, and the plea bargain is the complementary form used by the Public Prosecutor to pursue cartels.
The Memorandum will maintain the autonomy of each authority, but it intends to organize these experiences in collaborative instruments. In this regard, the following points should be highlighted: (i) CADE and MPSP may exchange information about ongoing agreements, provided that the individual or legal entity agree; (ii) the individual or legal entity that formalizes the Settlement Agreement may cause the MPSP to initiate negotiations for direct and indirect cartel-related crimes, and vice versa; then finally, (iii) frustrated negotiations will not imply confession or acknowledgment of unlawfulness, barring the authorities from using the information and evidence provided by the employees for any purpose.
Therefore, despite the desired coordination by the institutions, the rules and procedures for the conclusion of settlement and plea bargaining remain unchanged and autonomously governed.