The new Chief Minister of the Comptroller General of the Union (CGU), Valdir Moysés Simão, took office on January 2, receiving the post of former minister Jorge Hage Sobrinho, who spent eight years at the head of the institution. Hage participated in several events with ETCO, especially in discussions about fighting corruption.
In his speech, Simão stated that the CGU “has gained credibility and respect from the Brazilian people in twelve years of activity, having inserted the theme 'Prevention and Combating Corruption' on the country's public agenda irreversibly”. He assured that the body will be "unforgiving" with those who practice corruption. He also paid tribute to his predecessor: "A great country is made with the work of great women and great men, and Minister Jorge Hage is one of them."
Jorge Hage, for his part, defended a political reform to avoid corruption and also a reform in the judicial process to end the slowness of Justice, which "feeds the feeling of impunity that we need to overcome". In taking stock of his management, he said that in the last few months, more than 30 lawsuits have been filed against Petrobras directors, former officers and employees, in addition to nine lawsuits against companies suspected of fraud and bribery payment.
Simão, graduated in Law and tax auditor for the Federal Revenue for 27 years, chaired the National Institute of Social Security (INSS), from 2005 to 2007 and from 2008 to 2010. During the past year, he was executive secretary of the Civil House. Previously, for seven months, he coordinated the Digital Office of the Presidency of the Republic. From 2011 to 2013, he was executive secretary of the Ministry of Tourism.
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.
Attention and urgency in the implementation of Compliance programs. These were the main points addressed by participants at a seminar held in November by the Pharmaceutical Products Industry Union (Sindusfarma) in partnership with ETCO, on Law 12.846.
In his opening lecture, the former CEO of international laboratories, Jorge Raimundo, recalled that two years ago the code of ethics for pharmaceutical companies was completed and that signing the document is a prerequisite for any company in the sector. “Companies that want to have a history of more than 100 years cannot go wrong on a daily basis. In the pharmaceutical industry, it is essential to respect ethical principles and companies have to follow codes of conduct that protect investors from illegal acts that could compromise their market value, ”he added.
ETCO's Executive President, Evandro Guimarães, highlighted the institute's objective of raising awareness and mobilizing society so that the new measure can reduce corruption among public officials. The Executive President of Sindusfarma, Nelson Mussolini, cited the allegations of corruption raised by Operation Lava Jato to illustrate the importance of a change in the attitude of companies when it comes to corruption. “When you see everything that happens in Brazil today, you understand the importance of beginning to live ethics within the country”.
During the seminar, CVS Caremark's Compliance Officer, Alexandre Serpa, pointed out that the high figures involving pharmaceutical companies and the already known modus operandi the sector puts it in the sights of the Anti-Corruption Law. He pointed out that these factors further intensify the need for companies in the industry to develop serious compliance programs that, according to the law, can serve as mitigants in cases of conviction. In addition, he added that the risks for the segment have changed in recent years, requiring a review of existing prevention actions. “Ten years ago, corruption was paying for travel and gifts for doctors. Today, it involves high-cost drugs and relationships with medical associations and the government ”.
The person in charge of Machado, Meyer, Sendacz and Opice Advogados in the Compliance area, Leonardo Machado, emphasized the importance that the segment should give to the theme. “The pharmaceutical industry has peculiar characteristics in contact with the public sector and must be aware of the impacts inherent to the new legal text. Experiences in the application of similar anti-corruption laws in other countries, make it clear that the sector is one of the ones that most draws the attention of the authorities, ”he said.
Also present at the event, the Security and Control Analyst at the Federal Comptroller General (CGU), Flávio Rezende Dematté, said that Law 12.846 came to correct a gap Brazil in relation to the liability of the Legal Entity for acts of corruption. The measure also stands out, according to him, for its focus on the economic bias of corruption by imposing high fines and the publication of the condemnation of businesses involved in illegal acts.
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.
Part of the companies' agenda since it came into force last January, the Anticorruption Law has generated new demands in the Brazilian business environment. The issue, which still raises many doubts and questions, was debated on Friday, 19/09, in an event promoted by Machado, Meyer, Sendacz and Opice Advogados, in partnership with the North American firm Norton Rose Fulbright and the Institute Brazilian Competition Ethics Committee (ETCO).
During breakfast, lawyers, members of the public sector and the private sector discussed cases and mechanisms to face corruption within the business environment. At the event “Investigate or prevent? How authorities and companies are reacting to anti-corruption laws ”, ETCO's chief executive, Evandro Guimarães, said that corruption is behind crimes, such as piracy, smuggling and counterfeiting, which cause billionaire losses to the Brazilian business environment .
For him, although the Anti-Corruption Law was initially created to protect the public agent from corporate harassment, it caused the private sector to be concerned with internal integrity, minimizing the occurrence of illicit practices. The implementation of the law, believes the leader, will be more difficult in the municipalities. “It is in this sphere that there is a risk of misuse of the rule, especially the initiation of processes based on empty complaints. It takes common sense for everyone ”.
In addition to Guimarães, the leader of the Compliance area of Machado Meyer, Leonardo Machado, the partner of the Labor area of the office, Sólon Cunha, the coordinator of the intelligence center of the Secretariat of Public Security of São Paulo, Fábio Bechara, Norton Rose Andrew Raines, attorney and Canadian SNC Lavalin compliance officer, Diogo Moretti.
Compliance professionals working at ETCO member companies met last Tuesday (23) at the Institute's headquarters in São Paulo (SP) to discuss how to improve their organizations' integrity programs. The workshop, coordinated by ETCO, was led by Create.org's Chief Operating Officer, Craig Moss.
On his second visit to Brazil, the expert says he believes there is growing interest from the organizations installed here in improving compliance practices. This interest has been further motivated by the entry into force of the Anti-Corruption Law (12.846 / 13) in January, and also by the growing internationalization of companies, which in other markets have to follow similar milestones, such as the FCPA (United States) and the UK Bribery Act (United Kingdom).
For the executive, one of the keys to reducing the cost of implementing compliance programs is to collect subsidies from all departments of the company before drafting codes of conduct. HR must also be involved. This department has expertise in communicating with employees that should be used throughout the implementation, the expert understands. Craig also points out that the senior management's commitment to the program is essential for its acceptance in the organization. Only then should the creation of codes of conduct begin, which is generally the first initiative of companies.
Craig notes that the biggest challenge at this stage is making a code of conduct that translates into procedures that are easy for anyone to follow. “It is based on these procedures that the training of employees will be carried out, whose registration and performance must be frequent. Only then will an anti-corruption policy be alive. I know companies around the world that have good compliance policies, with recognition by their CEOs of their importance, but nothing more. So they are unable to have effective programs, ”he says.
Another important point is to carry out a good risk analysis, especially when the company depends on a very large supply chain. “If you have a thousand suppliers to control, you will never be able to pay attention to everyone at the same time. So you need to allocate your resources where the risk is greatest, always making a program consistent with the size of your company, ”says Moss.
The expert believes that compliance should be seen by organizations as a “journey”. Problems can occur even in companies with programs already structured. During the workshop, Moss cited cases from several organizations, and highlighted that of Morgan Stanley, who in 2012 was involved in a bribery scheme in China. The investment bank was able to prove in the American court that it had done everything in its power to curb internal fraud and, therefore, was cleared of the accusations and millionaire fines.
During the event, participants were also able to self-assess their respective compliance programs. “It takes time to progress systematically in each step, but each company has its own needs. You need to know what each one needs, ”says Craig. It ensures that even medium-sized companies can have efficient compliance. “It doesn't have to be complicated or extremely technological. It should only be functional. ”
The consultancy ICTS promotes on September 30, in the auditorium of the Museum of Modern Art (MAM) of São Paulo (SP), the event Compliance in Practice. The proposal is to discuss the implementation of anti-corruption practices in companies and their adaptation to the new provisions of the Anticorruption Law (12.846 / 13). During the event, cases from companies such as Ambev, Cielo, Grupo Embraer and Hypermarcas will be shown. The event is free and the places are limited. Participation must be confirmed by email firstname.lastname@example.org
Order date: September 30th, 2014 Open Hours: 8h15 Location: Auditorium of the Museum of Modern Art (MAM), in Ibirapuera Park Address: Avenida Pedro Alvares Cabral, no number, São Paulo (SP) Registrations:email@example.com
After the “trawl” of the Clean Record Law, which put hundreds of suspicious applications in limbo, the country now has the Clean Company Law (or Anti-Corruption Law). In effect since January, Law 12.846 holds companies and their employees accountable for committing acts against the public administration. With the legislation, the State wants to punish the corrupting agent and also the company that allows itself to be corrupted. With this, it expects Brazil to leave the uncomfortable position of 72 in the ranking of corruption in a global list of 180 countries. The new law provides for offenders punishments that can reach R $ 60 million or 20% of revenues, without exempting them from repairing losses to public coffers.
First of all, the purpose of the law is inhibiting and educational. More than that, the law aims to reward “clean” companies with better competitive conditions. "The law has the power to equalize the conditions of competitiveness among companies, making the market reward those who invest in ethics, integrity and efficiency," said Sérgio Nogueira Seabra, secretary of Transparency and Corruption Prevention. “When creating equal competition based on efficiency, the company, the citizen and the government benefit. It is a game where everyone wins ”, commented Seabra, one of the speakers at the seminar held by ETCO and Valor Econômico newspaper“ The new Anti-Corruption Law and its impacts on companies ”, on August 25, in São Paulo.
"This is a law designed to really change the level of the business environment in Brazil," said Jorge Hage, Minister of State Chief of the Comptroller General of the Union, who also participated in the event. The minister, however, sees two obstacles. One of them is the “necessary reform to speed up the judicial process, both civil and criminal, so that the processes do not take 10 to 20 years”. The other is “the abolition of corporate financing for political campaigns, which, by the way, are the two major goals that lie ahead”.
For the minister, the Clean Company Law, as he prefers to call the Anti-Corruption Law, is another milestone in a fight that started a decade ago, with “the portals of transparency, with the law of access to information, with the institution of the corregidorias system ”. These mechanisms, Hage enumerated, "removed 4.016 corrupt agents from the ranks of the federal administration, prevented 3.866 companies from participating in tenders and barred 2.690 NGOs from receiving agreements".
For the executive president of the Brazilian Institute of Ethics in Competition (Etco), Evandro Guimarães, companies have an important role in fighting corruption. “Each company must have its own internal committee for prevention of integrity.” According to him, "in Brazil, tax evasion, smuggling, piracy, adulteration are equivalent to a Gross Domestic Product (GDP) of the countries of Latin America". "The greatest asset of a nation is the internal market that has to be preserved and we cannot spare any effort to make companies participate in this anti-corruption movement," he said.
Mario Vinícius Claussen Spinelli, general controller of the municipality of São Paulo, defends the thesis that “it is necessary to change the promiscuity relationship between the public and private sectors in Brazil”. He suggested that the country adopt international models that hold corruption networks accountable. According to Spinelli, Brazil is one of the few developing countries that did not have an anti-corruption law. In the city of São Paulo, the results are illustrative. For example, just last month, the collection of ISS Habite-se increased 74%. The actions led to a corruption scheme that involved more than 400 companies and had been operating for a decade. Of the total - says Spinelli -, "only five of them sought the controllership to collaborate with the investigation and only one of them of their own free will".
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