CADE publishes draft FAQ on agency’s Leniency Program

The Administrative Council for Economic Defense – CADE presented on November 11, 2015, a preliminary version of the Frequently Asked Questions regarding the Agency’s Leniency Program. The FAQ comprehends CADE’s General Superintendence’s best practices and general proceedings when negotiating and signing leniency agreements.

The FAQ represents a milestone in the history of CADE’s Leniency Program, reflecting the experience with leniency agreements negotiations built on the past 15 years and in line with the best international practices. The document aims at strengthening and expanding CADE’s Leniency Program, providing more transparency, accessibility, predictability and legal certainty of the rules and proceedings related to the negotiation of the leniency agreements.

The document was drafted in a Q&A format explaining in a clear and direct way the general aspects of CADE’s Leniency Program, and the main steps in the negotiation and signing of the agreement.

The FAQ encompasses not only basic information about CADE’s Leniency Agreement, but also addresses more complex aspects about the program. In this sense, the FAQ is intended to a broad range of stakeholders, including students, scholars, specialized lawyers, public bodies, civil society, as well as companies and individuals involved in the leniency agreements.

The FAQ is not binding, as a significant part of its content stems directly from Law No. 12.529/2011 and CADE’s Internal Statute (RICADE in its acronym in Portuguese), which are both binding. This document aims at preserving institutional know-how, providing interpretation of the existing norms, and serving as reference to the leniency agreements negotiations.

Internal Statute - During the Public Session of the Tribunal of November 11, 2015, proposals of amendment to CADE’s Internal Statute were released. The proposals aim at improving, clarifying and detailing important aspects identified during the drafting of the FAQ regarding CADE’s Leniency Program in a binding norm. The purpose is to consolidate relevant topics that have been already consolidated by the agency’s case law.

Among the proposed amendments are the regulation of Leniency Plus, in the terms of the precedent of CADE’s Tribunal; the regulation of the “waiting line” for negotiation of leniency agreements and subsequent referral to an eventual negotiation of a Cease and Desist Agreement (TCC in its acronym in Portuguese); as well as the redefinition of intermediate deadlines that would allow for a quicker and better monitored negotiation of leniency agreements by the General Superintendence.

Public Consultation - The FAQ regarding CADE’s Leniency Program, released today in Portuguese and subsequently in English, and the proposals of amendments to the Internal Statute (RICADE) are available for public consultation on CADE’s website until 10 January 2016.

Contributions to the FAQ should be sent to guialeniencia@cade.gov.br. Suggestions and comments to the proposed amendments to RICADE should be sent to consultapublica2@cade.gov.br.