By Roberto Abdenur, Executive President of the Brazilian Institute of Ethics in Competition (ETCO)
Beneficial changes in the business environment are already beginning to appear as a result of the Anti-Corruption Law (Law No. 12.846 / 2013), even before it was regulated. Approved and sanctioned in August, it still depends on the veto analysis process. The law, which for the first time in the country opens the possibility of punishing legal entities in the event of corruption, revealed a horizon hitherto little perceived by many executives, who now see the need to create or strengthen the compliance area, even as a way to prove an ethical performance.
Compliance programs are known by publicly traded companies, which are committed to acting with transparency and following the parameters of corporate governance.
The dissemination of the concept of compliance, thanks to the Anticorruption Law, which aims to hold the company responsible for illicit acts practiced by its employees, will certainly bring about a cultural change in the modus operandi of companies and organizations, but not without presenting challenges that, in many aspects, they are very Brazilian. Acting as an ethical company is much more than complying with the rules: it means eradicating the culture of tolerance with deviations from conduct of all kinds. It means forgetting the meaning of the famous Brazilian way.
The incentive to change is due, in large part, to one of the articles of the law, which provides for a reduction in the penalty for companies that prove compliance programs. This means that if the company creates a structure to encourage everyone to follow the laws, it is already doing its part. It is assumed that, in this way, there is less chance of an employee having misconduct and the company may, eventually, be exempt from guilt. Without conformity, the terrain becomes more fertile for unethical attitudes.
Law 12.846 also innovates by involving the activities of Brazilian companies abroad. In this sense, it is in line with the laws of the United States and Great Britain, for example. In the USA, since 1977, the Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign civil servants by American companies. In 2011, Britain passed the Bribery Act, the anti-corruption law that also provides for punishment in cases involving foreign officials.
With globalization increasingly consolidated, the tendency is for governments to be concerned not only with corruption at home, but also with out doors. In theory, the Anti-Corruption Law can be applied in the recent case of a foreign company that revealed a corruption scheme in public service bids in Brazil.
In short, by law, it is harmful to the public administration, national or foreign, to promise or give an undue advantage to a public agent; finance or sponsor illegal acts; defrauding the bidding process; create, in a fraudulent manner, a legal entity to participate in public bidding; obtain undue advantage or benefit in contracts with the public administration; manipulate or defraud the economic and financial balance of contracts; or hinder investigation or inspection by public bodies or agents. All of this to avoid any misunderstandings in the public-private relationship.
They took the legal steps. After three years in Congress, it was voted and sanctioned in early August, largely because of popular pressure stemming from the June demonstrations.
Proposed by the Executive, Bill 826/2010 became Ordinary Law 12.846 / 2013. As it was sanctioned by President Dilma Rousseff with some vetoes, the Chamber constituted a Mixed Commission in charge of reporting the veto. The commission is made up by deputy Carlos Zarattini (PT-SP), rapporteur of the PL. For him, the approval of the law is a great advance, since it also provides for the company to repair the damage caused.
Among the penalties provided for are fines ranging from 0,1% to 20% of the company's revenue, loss of assets, suspension of activities or even the dissolution of the legal entity in the case of orange companies. Penalties can be mitigated if organizations collaborate with investigations or if they already have compliance mechanisms.
As with the principles of sustainability, in which large companies adopt internal models and start to demand the same from suppliers, today there is a great opportunity to create a virtuous circle of compliance. Two immediate consequences can be seen with this: Brazil will attract more foreign investment and the relationship between the private sector and the public sector will be more ethical.