Last Wednesday (8/04) edition of the Federal Official Gazette (DOU) brings two Ordinances and two Normative Instructions signed by the Chief Minister of the Comptroller General of the Union (CGU), Valdir Simão, who discipline routines and procedures for the accountability processes of companies involved in corruption cases. The edition of the rules complements Decree No. 8420/2015, which regulated Law 12.846 / 2013 (Anticorruption Law, and provides elements for the definition of fines applicable in each case by the commissions responsible for the accountability processes, which can reach 20% billing of companies.
Ordinance No. 909 defines criteria for evaluating integrity programs (compliance) of companies as a requirement for granting a reduction in the amount of the fine. The second publication, Ordinance No. 910, establishes the procedures for determining administrative responsibility and for entering into a leniency agreement within the scope of the Federal Executive Branch.
Normative Instruction No. 1/2015 defines what should be understood by gross revenue, the main element to be considered for calculating the fine provided for by law. The definition is made according to the tax profile of each company. The last publication made by CGU this Wednesday is Normative Instruction No. 2/2015, which regulates the registration of information in the National Register of Incidental and Suspended Expenses (CEIS) and in the National Register of Punished Companies (CNEP) by the bodies and entities the Executive, Legislative and Judiciary branches.
In a gesture awaited 14 months ago, President Dilma Rousseff signed on March 18 the decree that regulates Law nº 12.846 / 13, the Clean Company Law or Anticorruption Law. With the regulation, which defines responsibilities in the application of the law, States and municipalities that awaited this definition will finally be able to adopt its parameters. As a result, the law will be in force throughout the national territory.
In January 2014, the business market was agitated with the entry into force of this law. The biggest concern for entrepreneurs was understanding how to put a compliance program into practice - either corporate integrity or compliance. Much has been discussed about which measures could be most effective, as the law holds corporations accountable for acts of corruption by their employees.
The processing of the bill was fast, considering the average time of this process in Brazil. Its promulgation by the president, in August 2013, also followed this pace. And the entry into force, on January 29, 2014, took place as scheduled.
There was some international pressure to pass the law, after the creation of the United Nations Global Compact and the convention of the Organization for Economic Cooperation and Development (OECD). Brazil should follow the example of other countries and begin to financially punish companies that tolerate acts of corruption in their staff, before the World Cup.
Brazil took care of all that. The regulation of the law fell to the municipalities, the States and the Union. The State of São Paulo, like that of Rio Grande do Sul, published a regulatory decree on January 29, 2014. The City of São Paulo, on 13 of May. Some states and many municipalities, however, were awaiting federal regulation, even to be able to follow the same parameters.
Federal regulation was essential to avoid leaving legal gaps that would hinder its implementation. In view of the delay in federal regulation, six entities sent a letter to President Dilma Rousseff, on January 28, reinforcing the importance of publishing the decree. ETCO, Ethos Institute, BM&F Bovespa, Brazilian Institute of Corporate Governance (IBGC), Group of Foundations and Companies Institutes (GIFE) and Brazilian Business Council for Sustainable Development (CEBDS) highlight, in the document, the importance of showing society that it exists effort to reduce corruption in the country. But it was only after the March 15 demonstrations that the president signed the regulatory decree, as part of the anti-corruption package announced on the 18th.
The decree gives the Federal Comptroller General (CGU) exclusive competence to institute, investigate and judge acts that are harmful to the public administration; establishes assessments on the effectiveness of compliance programs; defines conditions for leniency agreements and determines the financial punishment of the convicted company. The fine will never be less than the value of the benefit earned and its limits are 0,1% to 20% of the gross revenue of the last year (if it is not possible to evaluate the company's gross revenue, the amount will be limited between R $ 6 thousand and R $ 60 million).
It is now up to companies and all Brazilians to persistently mobilize to comply with the Clean Company Law.
*Evandro Guimaraes is Executive President of the Brazilian Institute of Competition Ethics (ETCO)
President Dilma Roussef signs “Anticorruption package”
President Dilma Rousseff symbolically delivered last Wednesday (18) to the National Congress, in a ceremony at the Planalto Palace, the so-called “Anti-corruption package”, set of proposals prepared by the Executive to inhibit and punish irregularities in the public administration.
The package brings together projects that are already underway in the Legislative on the topic and new proposals prepared by the Executive.
Main points
Check below the six points of the anti-corruption package announced by the president:
1.Criminalization of cash practice 2(use of undeclared resources, especially in election campaigns). Currently, the practice is considered a criminal offense, that is, a lighter offense, punishable by a lighter penalty.
2. Application of the Clean Record Law for all positions confidence in the federal government sphere.
3. Early sale of seized assets after acts of corruption to prevent them from being used by public officials and being sold through an auction. This bill has been in Congress since 2011, but now the government has asked for constitutional urgency. According to the Constitution, projects with this character have 45 days to be voted on in the House and another 45 in the Senate. If the deadline is not met, the project will lock the agenda of the House in which it is in progress and no other proposal can be voted on.
4. Criminal accountability of public officials that do not prove that the goods were obtained. The government also defends the approval of a new type of crime that punishes public officials who have enrichment incompatible with the gains. A project on the subject has been in progress since 2005. Now, the government says it will promptly encourage the approval of the project.
5. Confiscation of public servants' assets who have enrichment incompatible with earnings. Congress received a Constitutional Amendment Proposal (PEC) from the president, which must be passed in two rounds in the House and Senate, with at least three-fifths of the votes and each round.
6. Signature of the decree that regulates the Anti-Corruption Law, which holds legal entities accountable for committing acts against the public administration and punishes companies involved in acts of corruption
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Last Wednesday (8/04) edition of the Federal Official Gazette (DOU) brings two Ordinances and two Normative Instructions signed by the Chief Minister of the Comptroller General of the Union (CGU), Valdir Simão, who discipline routines and procedures for the accountability processes of companies involved in corruption cases. The edition of the rules complements Decree No. 8420/2015, which regulated Law 12.846 / 2013 (Anticorruption Law, and provides elements for the definition of fines applicable in each case by the commissions responsible for the accountability processes, which can reach 20% billing of companies.
