O CADE e a desproporcionalidade na aplicação da pena de proibição de participar de licitações públicas

Abstract

This research paper consists of the study of the accessory penalty of prohibition to participate in public procurements (debarment), imposed in addition to the fine penalty in certain cases by the Administrative Council for Economic Defense (CADE), pursuant art. 38, item II, of Law No. 12.529/2011. The study reveals its relevance to the extent that the penalty may prove to be more severe than it should be in practice, possibly causing negative economic and social effects to the convicted company, its employees, its market of operation and society as a whole. Therefore, the application of the debarment to participate in public procurements must be analyzed in light of CADE's decisions for imposing the sanction, the provision of the sanction in other Brazilian laws, the way in which the Judiciary applies it, the sanction and its form of application in other jurisdictions. In order to evaluate proportionality, the principles for preserving a company, the social function of property, the search for full employment and the proportionality of penalties will be considered as a guidance. Based on the aforementioned analysis, it is intended to verify whether the penalty is disproportionate and contrary to the principles and values relevant to the Brazilian society in the way it is historically and currently applied by CADE. Once the disproportionality is confirmed, legal solutions should be thought out for the problem