In the 196th Ordinary Trial Session, held on 05/11/2002, new Commissioner Gustavo Augusto Freitas de Lima from CADE’s Tribunal issued an Opinion in Administrative Proceeding no. 08700.007278/2015-17, which investigates cartels in public bids from Infraero, with his understanding of a systematization of the guidelines for sentencing / methodology for calculating fines for individuals.
Commissioner Gustavo Augusto defended applying moderately higher fines for individuals, so that there are effective deterrent and pedagogical effects. For this, the methodology of fines should consider the individuals economic capacity in the calculation, guaranteeing amounts that are proportional, payable and applicable.
To meet this rationale, the Commissioner proposed a two-step test:
- Evaluating the conduct under analysis and its circumstances to determine the fine rate, considering three levels depending on the type of conduct:
- Hardcore cartel: 12 to 20%;
- Cartel of medium gravity: 5 to 12%; and
- Unilateral conducts with lower potential of harm: 1 to 5%.
- Evaluating the individual’s contributing capacity from their income tax report and other relevant financial-economic elements, in order to assess whether the imposed fine is compatible with their economic capacity. The Tribunal should consider an individuals’ gross annual revenue from more recent years so that any fine is not superior to 30% annual revenue, but not lower 10 days of revenue.
The trial has not yet concluded in the Tribunal and written opinions have not been made available by Commissioners who have made oral statements. Thus, it is possible that there are changes to their positions.
It is worth noting that the subjects of liability of individuals and methodology for calculating fines (considering economic capacity) have been widely discussed by the Tribunal in the last months, with several new proposals on the matter.