Brazilian law does not criminalize legal entities for committing corruption offenses. However, according to Law No. 12.846, dated 01.08.2013, "Clean Company" (Lei No. 12.846/13 da Empresa Limpa), also known as theAnti-Corruption Law(Lei Anticorrupção), companies are subject to administrative and civil liability.
Pursuant to Article 16 of Chapter V of this law, a leniency agreement may be entered into with an organization accused of committing acts against a state, national or foreign administration(prática de atos contra a administração pública, nacional ou estrangeira), if it actively cooperates with the investigation, allowing for the identification of those involved in the crime, as well as promptly obtaining documents and information confirming the existence of illegal acts.
Guideline No. 07/2017, published by the Federal Prosecutor's Office, includes 18 points to be observed by prosecutors when concluding such agreements.
In particular, according to the document, the MPF officer with the authority to file a lawsuit for violation of Law No. 12.846/13 must ensure that a formalized agreement is negotiated, agreed upon and prepared, with the negotiation of the agreement to begin at the same time or after the negotiation of a mutually beneficial cooperation.
A confidentiality agreement should be negotiated after discussing with the organization the information and evidence to be provided as part of the cooperation, as well as the possibility of a leniency and timing agreement.
Negotiations should be conducted by more than one MPF staff member and may also involve other bodies such as the Ministry of Transparency, Inspection and Control(Ministério da Transparência, Fiscalização e Controle), the Union Attorney General(Advocacia-Geral da União), the Administrative Council for Economic Security(Conselho Administrativo de Defesa Econômica), and the Union Court of Auditors(Tribunal de Contas da União).
The leniency agreement must contain at least the following sections:
- legal grounds;
- a description of the parties (in case the party is a group of companies, a description of each participant);
- a description of the expected social effect (the potential impact and usefulness of entering into such an agreement)
- the purpose of the agreement
- obligations of the parties (including the obligation to develop and adopt compliance programs by the organization, compensation for damages and payment of fines);
- the possibility of other parties (government agencies and other institutions) entering into the agreement;
- cooperation with foreign authorities;
- provisions on asset recovery;
- confidentiality provisions;
- provisions on refusal to testify against oneself and the right to silence;
- Termination of the agreement: prerequisites and consequences.
In the negotiations, the provisions of international agreements to which Brazil is a member, such as the UN Convention against Corruption, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and the Inter-American Convention against Corruption, must be taken into account in order to avoid the imposition of double fines.
The document also stipulates that in calculating the amount of the fine, prosecutors should be guided by the provisions of article 12 of Law No. 8.429/92 on Administrative Misconduct(artigo 12 da Lei No.8.429/92 de Improbidade Administrativa) and/or articles 6 and 16 of section 2 of Law No.12.846/13 (artigo 6 e 16, § 2 da Lei No.12.846/13) and article 17-20 of Decree No. 8420/15(artigos 17 a 20 do Decreto No. 8420/15).
In the context of the issue under consideration, the application of liability for corruption offences against legal persons in Brazil should also draw attention to the importance of corruption prevention measures taken by organizations.
Thus, according to article 7 of Law No. 12,846/13, the determination of sanctions takes into account, inter alia, the organization's internal integrity mechanisms and procedures, the monitoring and encouragement of whistle-blowers, and the effective application of codes of ethics and conduct. Further to these provisions, the specifics of the evaluation of compliance programmes are set out in Decree No. 8420/15 (Chapter IV).
In addition, the Union Attorney General, together with the Ministry of Transparency, Inspection and Control, has developed Guidelines for the development and implementation of compliance programs by organizations ("Programa de Integridade: diretrizes para empresas privadas"This guide addresses anti-corruption measures such as:
- implementation of codes of ethics and behavior;
- development of procedures for interaction with counterparties, policies on giving/receiving gifts and hospitality, interaction with foreign officials, contracting, sponsorship and donations, acquisitions, mergers and restructuring;
- implementing accounting and control mechanisms; establishing feedback mechanisms, including for filing complaints and reporting observed irregularities;
- Providing consultation and training, establishing an effective and non-discriminatory system of disciplinary measures and mechanisms to ensure that wrongdoing is addressed.