CADE recently published new “Guidelines for Evidence in Antitrust Leniency Agreement Proposals with CADE,” aiming to guide public authorities on evidentiary parameters at the time of negotiations of antitrust leniency agreements. The new Guide also brings important references to companies proposing agreements, which help in separating internal investigations and information surveys, as well as documents that should be reported in the conduct history.
Despite being formally aimed at leniency agreement proposals with CADE, the document is relevant to other forefronts with the Antitrust Authority, such as negotiations of the Term of Cessation of Conduct Commitment (TCC), and even to investigations of general bilateral conduct. Moreover, the Guide has relevant subsidies for the preparation of competition compliance programs.
The novelty of the recently published recommendations, in reference to the first Antitrust Leniency Program Guide (2017) – which already provided guidance on the type of information and documents that should be submitted by the proponents of the agreement – is that these are now listed and categorized in the new document within Cade’s wide jurisprudence. Cade establishes the standards of direct and indirect evidence typically accepted or rejected by the Court, based on decisions from cartel cases and other cases that influenced the adoption of equal business conduct between 1993 to 2020.
With this, the Guide can set bounds for the proponents’ expectations regarding their documents’ potential to effectively prove the narrated violation, according to Cade’s own historical understanding. Thereby, it would be possible to reduce the situations in which leniency agreements are made without subsidies, principally based on the expectation of evidence raised in future investigations or in TCC agreements (an expectation that can be frustrated). In addition, it would aid in reducing the discrepancy of understandings between the General Superintendence (the body that signs the agreement) and CADE’s Court (the body that can effectively condemn the reported conduct).
Thus, the Guide reinforces the necessity for a jurisprudential review to delimit some parameters in the adoption of the minimum evidential standard. Despite this, the Guide reinforces that the investigative activity is dynamic, and that it is possible to have situations that deviate from jurisprudential standards.
Cade’s review of precedents is presented in the Guide by eight principle topics, accompanied by addendums of excerpts from the referenced decisions. They are the following: (i) examples of evidence of cartel in the reasoning of CADE’s Court; (ii) direct evidence of the existence of an agreement; (iii) indirect evidence of an agreement; (iv) evidence of the effects of the conduct in Brazil; (v) an adequate evidence set; (vi) evidence considered insufficient when presented alone; (vii) validity of the evidence presented; and (viii) evidence of the level of institutionalism of the conduct.
The Guide concludes that different types of evidence have been accepted by the Court to condemn cartels. Direct evidence is highly valued, but a conviction can also be based on indirect evidence, when presented in high enough numbers. CADE’s Court values a holistic analysis of such evidence, meaning evidence that proves the conduct through interference of the circumstances, especially when presented as an abundant, diverse set of evidence. For conducts occurring abroad, the demonstration of potential or real effect in the domestic market was shown to be indispensable.