Minister Hage also gives new details on the criteria for assessing the effectiveness of integrity programs

In a lecture at the 2014 Latin America Ethics Summit, in July, the Chief Minister of the Comptroller General of the Union (CGU), Jorge Hage, spoke for the first time about the rules for leniency agreements provided for in the Anticorruption Law (12.846 / 13) . The criteria will still be detailed in federal regulations, to be published by the Casa Civil. The text was written by the CGU and endorsed by the Ministry of Justice.

Hage said that companies that admit participation in the infringement will be entitled to leniency agreements; stop the illegal practice immediately; collaborate with investigations and the administrative process; assist in identifying stakeholders and provide evidence. Plaintiffs must also not have breached such agreements in the past three years.

With Law 12.846 / 13, the leniency instrument, previously only available in competition law, becomes a tool for intervention in investigations of corruption cases. The instrument offers lesser penalties to companies that voluntarily report internal crimes. The State, in turn, can bring to justice crimes that are very difficult to investigate.

The CGU holder also gave new details on how the agency will analyze the effectiveness of integrity programs (compliance) in future processes. Law 12.846 / 13 says that convicted companies may have milder penalties if they prove that they prevent corruption through these programs. This efficiency analysis will also be detailed in the regulations in the Civil House.

According to Hage, the assessment should consider senior management's commitment to preventing corruption; standards of conduct and code of ethics; conducting frequent training; the existence of widely publicized reporting channels, internal controls and disciplinary measures, and transparency in donations to candidates and parties.

The performance of companies in the face of deviations will also be analyzed. It is expected that they will promptly report the harmful act to the government and that the employees involved will be removed before notification to the authorities. Companies must also prove that management has not participated in or tolerated corruption by subordinates.

"What is more difficult to prove will be analyzed by the result [produced by the integrity measures]," said Hage, when asked how companies would eventually be analyzed while the regulation is not in force.

Controllership will also take into account the number of employees and subsidiaries; the complexity of the hierarchy; the use of consultants, commercial representatives and intermediaries, and the degree of interaction with the public sector. "Small and medium-sized companies [therefore] will not be evaluated in the same way as large corporations from the point of view of compliance," said the minister

Widespread competence to institute lawsuits is inherent to the federal state, says CGU; organ studies mechanisms to mitigate conflicts

The Chief Minister of the Comptroller General of the Union (CGU), Jorge Hage, said in July that companies will have to get used to the system of application of the Anti-Corruption Law (12.846 / 13), which gives competence to organs of all public administration to institute proceedings. The speech was addressed to lawyers from large corporations gathered at the 2014 Latin America Ethics Summit, in São Paulo.

"We share your concerns," said Hage, acknowledging the possibility that some of the thousands of agencies in the federal, state and municipal administrations could misuse the standard. “But [the dispersed competence] is a consequence of living in a federal state. We have to live with this multiplicity of agents. It would be impossible to centralize law enforcement at the federal level. ”

The fears of the private sector in relation to widespread competence range from the possibility of agencies using the law to extort money from companies under the threat of initiating lawsuits, to the overlapping of competences between agencies in the application of the standard. An example of this would be the investigation of bribery directed at a municipal agent, responsible for works financed with federal resources. In theory, the administrative proceeding could be initiated by the Union and the municipality.

Hage said the CGU is looking at mechanisms to mitigate this type of conflict. The agency also studies channels of dialogue between what the minister called “different punitive regimes”, such as the Federal Audit Court, the Securities Commission and Cade. In addition, CGU analyzes ways of harmonizing legal frameworks, such as the General Law on Tenders and Improbity, at points of possible conflict with Law 12.846 / 13.

The minister again said that the norm is an advance in the fight against corruption, by covering gaps in other laws and by providing unprecedented punishment in the patrimony of companies that commit illicit acts in Brazil and abroad (another novelty in the text). He also said that the instruments of administrative process and strict liability are not new in Brazil and were chosen because they are the most effective means against impunity.

With measure, City Hall seeks to ensure legal security and transparency in the application of the Anti-Corruption Law

When regulating the Anticorruption Law, the city of São Paulo attributed only to the Comptroller General of the Municipality (CGM) the competence to apply the rule, leaving out the other municipal bodies. According to the head of CGM, Mario Vinícius Spinelli, the measure aims to guarantee legal certainty in the application of the law and to restore an environment of trust between companies and the municipal administration.

"I have read that Law 12.846 / 13 can generate even more corruption," said Spinelli in a lecture at the 2014 Latin America Ethics Summit, in reference to the possible misuse of the standard by public agencies. “In São Paulo, we decided to centralize the competence in Controllership to convey confidence. The regulations we created show that the procedures to be done by the City are serious, and companies will have an opportunity to show what they have done to prevent corruption. ”

Spinelli acknowledged that there is a crisis of confidence in the role of the State in guiding the interests of society. For him, restoring that trust is the responsibility of public managers and companies. The controller-general believes that strong public institutions committed to eliminating corruption, supported by robust legal frameworks, are part of the solution. But he stressed that the success of the Anti-Corruption Law depends on the good faith of the public authorities and the private sector.

As for the City Hall, Spinelli said that the creation of the CGM to identify internal deviations and the agency's initiative to make public the scheme of fees charged by City Hall inspectors (known as the ISS Mafia), in 2013, are demonstrations of commitment current municipal administration with transparency and an end to corruption.

On the part of companies, the controller-general understands that their role is not to tolerate corruption both internally and externally. Internally, this attitude of non-tolerance must reflect the efficiency of compliance programs in combating and preventing illicit conduct. At the external level, it should reflect the non-compactness with harassment of State agents, if it occurs.

Spinelli recalled that companies have reporting channels available, which are still underused. According to him, only 115 of the more than 35 thousand complaints already forwarded to the Federal Internal Affairs Department since its creation were made by companies. The controller-general also regretted that, of the 500 organizations investigated by the Public Prosecutor in the case of the ISS Mafia, only one approached CGM to collaborate with information. "This reflects the distrust of companies in the state, but it is something that needs to be changed."