The so-called Anti-corruption Law (Law n° 12.846/2014), which provides for the administrative liability of legal entities for committing acts against the Public Administration, national or foreign, was finally regulated by the Federal Government, through Decree n°. 8.420, published on March 18th, 2015. In a general way, the Decree in question brings relevant guidelines on the following themes exposed:
- i) The Administrative Process of Accountability (APA)
- The establishment and the judgment of the APA will be held by the highest authority of the entity in the face of which the harmful act was committed.
- Implementation of a commission to be appointed among its servers, which will help the judging authority with the verification of the cases.
- Possibility of implementing a preliminary investigation, which will be secret, in order to verify the authorship and the materiality of harmful acts.
- Request of reconsideration with a suspensive effect against the decision of the APA.
- Concerted verification of other actions which are harmful to the Administration, provided in other laws in the APA itself.
- Possibility for the Comptroller General of the Union (CGU) to summon the proceedings for the examination of regularity or the correction of the stage, including promoting the application of the appropriate administrative penalty.
- ii) Calculation of the fine
- Fixation of the criteria of dosimetry of the fines, with a reduction of one to four per cent of the fine, due to the existence of “Programs of Integrity” (compliance) within the companies.
- Limitation of the fine between R$ 6 thousand and R$ 60 million.
- Setting of the fine never inferior to the value of the benefit obtained by the company.
iii) Leniency Agreements
- The conclusion of a leniency agreement goes through the following points: (i) acknowledgment of the company’s participation in the infringement; (ii) collaboration with the identification of those involved in the infringement; (iii) full compensation of the damaged caused and (iv) cooperation with the investigation and with the supply of documents proving the infringement.
- The leniency agreement may be signed only with the first legal entity who expresses an interest to cooperate with the investigation of the harmful act.
- The fulfillment of the leniency agreement may exempt the legal entity from certain punishments and even reduce the fine amount up to 2/3.
- iv) Programs of integrity (compliance)
According to the decree, the program must be structured and implemented in accordance with the characteristics and risks of the activity of each company. Therefore, it establishes criteria and procedures for the compliance programs, and we can point out the guidance on:
- Effective application of ethics codes and conduct codes;
- Carry out periodic trainings;
- Implementation of denunciation channels;
- Periodic updating of the program;
- Functional and structural independence of the companies’ compliance team;
- The programs of integrity for micro and small companies may be simplified, in compliance with the guidelines of the Decree.
The Public Law team from the law firm Chenut Oliveira Santiago remains at your disposal for any further information related to the matter exposed.
This is a newsletter from Chenut Oliveira Santiago and should not be considered as legal advice.