In order to facilitate the understanding of the contents present in the Anticorruption Law (Law 12.846 / 2013) and in the Decree that regulates it (8.420 / 2015), the Office of the Comptroller General (CGU) produced a series of explanatory infographics on the topic. There are six visual representations, which simplify the understanding of the main points of the legislation and deal with aspects such as the accountability process, calculation of the fine, leniency agreement, compliance and registrations.
In infographics it is possible, for example, to view the elements of the leniency agreement. the requirements to stop if you form it and the possible benefits gained from it.
To access the CGU website and view the infographics, click here
On February 11, the Federal Audit Court issued a normative instruction (IN 74/2015) making it mandatory for the prior submission, to TCU itself, of leniency agreements entered into within the scope of the Federal Public Administration by the Federal Comptroller General, under terms of Law 12.846 / 2013, the already known anti-corruption law. Considering that the TCU, with limited human and technological resources, is already in charge of an enormous amount of work - supervising the use of all federal public resources -, it is not uncommon, even, that criticisms are directed to him for the slowness of his ordinary office , for what reasons should this function be attributed more to TCU?
Six entities, including ETCO, sent a letter on January 28 to President Dilma Rousseff, reinforcing the importance of the federal regulation of Law 12.846 / 2013, the so-called Clean Company Law or Anti-Corruption Law, which holds legal entities responsible for acts of corruption.
In addition to ETCO, the letter signed by the Ethos Institute of Companies and Social Responsibility, BM&F Bovespa, the Brazilian Institute of Corporate Governance (IBGC), the Group of Foundations and Companies Institutes (GIFE) and the Brazilian Business Council for Sustainable Development ( CEBDS).
“We recognize that Brazil has made great strides in recent years in improving its integrity system, which prevents and combats corruption. As an example, we can mention the creation of the Comptroller General of the Union and the promulgation of the laws on the Transparency Portals, the Clean Sheet and Access to Information ”, says the letter, remembering that the Clean Company Law came into force on 29 January 2014. Its regulation by the Presidency of the Republic “is fundamental to avoid leaving legal voids that hinder its implementation”.
In the letter, the entities highlight the importance of clarifying the parameters that will be used to assess the effectiveness of companies' compliance programs; to define the responsibilities of each federative entity in the processes; to determine the parameters for leniency agreements and to communicate to society its effective implementation.
The seminar The Anti-Corruption Law and Relations with Public Authorities, promoted by Internews, will be attended by former STJ Minister Gilson Dipp, São Paulo City's General Controller, Mário Vinícius Spinelli and other specialists on the subject.
What is the importance of combating corruption, especially given the scenario of high impunity in which we currently live?
Impunity is certainly a stimulus to corruption. Therefore, it is necessary to adopt measures from governments and civil society to reduce situations in which deviations may occur. In this sense, the new Anticorruption Law [Law 12.846 / 13] represents an extremely relevant instrument. The rule brings the possibility of financially punishing companies that maintain improper relations with the State and discourages undue actions in the business environment. It also applies to civil society entities. Therefore, it is a large universe of institutions that is covered by the new law. Another important point is that the rule can be put into practice within the scope of administrative law, without the need for judicial measures, and provide a result with more speed and simplicity. And, if there is an inappropriate situation in the administrative sphere, nothing prevents the correction from being made in the judicial sphere. The Anticorruption Law is in line with society's expectations. The internal control bodies are preparing to apply it. The State of São Paulo has already regulated the provision and the Internal Affairs Department of Administration is already prepared to apply it.
Companies are a little afraid of the possibility that the standard will eventually be misused and generate new situations of corruption. How do you see this issue?
I want to believe that we live in a democratic rule of law, that has mature and strong institutions, zealous for legal security, and that all this can generate a favorable scenario for the application of the law, without injustice, persecution or misuse of the rule. Brazil has an important precedent in this regard. Since the 90s, the General Bidding Law has empowered the administrative sphere to apply sanctions against companies, which can go five years without making new contracts with the public administration throughout Brazil. This has been in place for more than 20 years, without, however, actually having a problem. Therefore, this is a favorable and optimistic precedent for the application of the Anti-Corruption Law. However, we must be grounded and clear that the law is not so attractive to anyone who wants to confess to an unlawful act, as is, for example, the Law on Defense of Competition. This rule provides for immunity from the penalty provided for companies that voluntarily report deviations from authority, through a leniency agreement. In the case of the Anti-Corruption Law, there is no immunity as a result of this type of agreement. There is only a reduction in the applicable penalty. From the point of view of morality, the solution of the Anti-Corruption Law is perhaps more appropriate. But this can, of course, make it more difficult for companies to recognize their own flaw and create a situation where law enforcement depends on investigation and complaints. This will be a challenge to the implementation of Law 12.846 / 13. But the rule already has its value in spreading a culture of ethical behavior, of integrity to avoid undue situations. In that sense it is very beneficial for society.
One of the bottlenecks of the law is the need to equip the public administration bodies responsible for its application with tools that make it possible, for example, to make investigations feasible. What do you think about that?
This is a very important aspect. The internal control bodies in Brazil need to be valued by the government, have an adequate budget, have a public tender and are prepared for the job. Considering that governments are large institutional devices, it is natural that they demand proportional control structures. I preside over Conaci, the National Council for Internal Control. Our institution has the strengthening of internal control bodies as a priority agenda. In Congress, there is a proposal for Constitutional Amendment No. 45, of 2009, which establishes that internal control is exercised by own bodies, with competitions for which they have competed. In Brazil, there are different situations, with very well structured bodies, equipped, with conditions, experience and trained people, and also organs in very precarious situations. It is in the society's interest that there is this advance in management self-control. Throughout the recent historical process of Brazilian democracy, with the Constitution of 88, there was a strengthening of external control, represented by the Public Ministry and the Courts of Accounts, which is very good for citizens. There are also good results in internal control, which should encourage institutional improvements in favor of defending legality and morality.
In the face of so many facts involving the public and private sectors in Brazil, the country still needs to develop actions that place employees from both spheres alongside anti-corruption initiatives. This is the opinion of ETCO's Executive President, Evandro Guimarães, who participated, in November, in the Clean Company Law Conference, organized by the Federal Comptroller General (CGU).
The event, held at the Getúlio Vargas Foundation in São Paulo, divided the discussion on the Anticorruption Law into panels. Among other points, the impact of the measure on companies, the necessary adaptations to integrity programs, the execution of leniency agreements were addressed.
CGU Chief Minister Jorge Hage highlighted that Law 12.846, which he called the Clean Company Law, represents another step in Brazil's search for mechanisms to fight corruption. He added, however, that measures such as the end of private financing of political campaigns and political reform are essential for the country to gain a new direction on the subject.
The Anticorruption Law is the first Brazilian legal framework to provide for important punishments (up to 20% of revenues or within the limit of R $ 60 million when it is not possible to measure it) for companies that violate ethics in national or foreign public administration. Companies can also be penalized with the wide publication of the condemnatory action.
Despite the severe punishment, Brazilian corporations approve the mechanism. During the CGU event, professor at Fundação Dom Cabral (FDC) Dalton Sardenberg presented a research that shows that 50% of the companies consulted are in favor of the new legislation. Another 31% are against and 19% neutral. The understanding of the law grows with the size of the business - 70% of large corporations understand the law. In medium and small companies, the percentage drops to 39% and 37%, respectively. While 63,6% of multinationals understand the Anti-Corruption Law, the rate is 40% for family companies.
But, regardless of size, participants at the CGU event stressed the importance of all corporations developing and following a code of conduct and an anti-corruption culture. “We would like all businesses to think of anti-corruption mechanisms as they think of CIPA (Internal Commission for Accident Prevention). May compliance be the concern and pride of all employees ”, emphasized Guimarães.
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