Civil House analyzes proposed regulation for Anti-Corruption Law


States and municipalities await Union decree to publish local regulations; doubts fall on the evaluation of corporate programs of administrative integrity and on the competencies of public bodies in the establishment of processes

In May, the Comptroller General of the Union (CGU) submitted a proposal for federal regulation to Law 12.846 / 13, the Anticorruption Law, to the Civil House. The CGU proposal already has the approval of the Ministry of Justice and should clarify obscure points in the text, pointed out by States and municipalities as a justification for the delay in preparing their own regulations.

Without federal, state and municipal regulations, Law 12.846 / 13 cannot be applied. Tocantins and São Paulo are among the few states that have already regulated the standard. Among the municipalities, except for exceptions such as the Municipality of São Paulo, most of the 5 Brazilian cities still have no decrees even drafted.

Mayors and governors argue that it is necessary to wait for the rules of the Civil House to make the regional decrees in line with the federal text, with no deadline to leave. Law 12.846 / 13 left it up to states and municipalities to regulate the competence of the bodies and the procedures for instituting leniency processes and agreements.

One of the points that generate more doubts is precisely the competence. States and municipalities have different structures, which should accumulate the responsibility for prosecuting corrupt companies, along with their current obligations. “The law confers [generally] this attribution to the maximum authority of each body or entity of the Executive, Legislative and Judiciary Powers”, points out the partner of Machado, Meyer Sendacz and Opice Advogados in the area of ​​Compliance, Leonardo Ruiz Machado, in an article published in January in Valor Econômico.

In the text, the lawyer argues that the application of the Anticorruption Law should be left to a single body, such as the Administration and Economic Defense Council (Cade), in the competitive sphere.

Compliance - States, municipalities and companies also have doubts about how the agencies designated to apply the law should assess the effectiveness of the accused organizations' administrative integrity programs. Law 12.846 / 13 establishes that the existence of these programs, provided they are effective, serves as a mitigation in the penalties applied.

In an interview with the website Consultor Jurídico, the chief minister of CGU, Jorge Hage, affirms that the federal regulation will consider the following criteria: “the performance of the integrity program in the face of irregularities in topics such as the prompt and spontaneous communication of the act harmful to public administration; the removal of the employees involved in the harmful act before notification by the public authority; and proof of non-participation, tolerance or knowledge of high-level personnel in the company ”.

The existence of consultants active in preventing misconduct, in the case of smaller companies, will also be considered. The CGU decree should guide leniency agreements, an instrument that provides for minor sanctions for companies that voluntarily report internal deviations to the authorities. The federal regulations must still present criteria for the application of fines and terms.

In effect since January, the law punishes companies that violate public administration. Among the typified acts are attempted bribery and influence on bidding processes, for which fines of 0,1% to 20% of revenues are applied. If it is not possible to check the billing, the penalty can vary from R $ 6 thousand to R $ 60 million.

Convictions can be attributed to companies even when employees have committed unlawful acts without management's consent. Before, the punishment was only for the individual linked to the organization.

Suggested reading:
Article: Irreversible advance, by the Chief Minister of the Comptroller General of the Union, Jorge Hage, published in Folha de S. Paulo, on 23/06/2014. Read the text by clicking here.