The Anti-Corruption Law came into force in Brazil on January 29, 2014. As a result of it, companies that, through employees or representatives, commit unlawful acts against national or foreign public administration became liable and even subject to punishment with administrative sanctions. In four years, the federal government initiated 183 proceedings against companies. Of these, 153 were initiated in 2017. So far, the investigations have resulted in the imposition of 30 penalties.
The bodies that most used the rule to investigate private groups were the Ministries of Finance, with 62 proceedings, of Mines and Energy, with 42, and of Health, with 34.
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Next are the Ministries of Justice and Citizenship, with 11; Science, Technology, Innovation and Communications, with 9; Agriculture, Livestock and Supply, with 8; and Education, with 6.
At the bottom of the list are Transport, Ports and Civil Aviation, with 5 investigations; Planning, Development and Management, with 3; Social and Agrarian Development, with 2; and Industry, Foreign Trade and Services, with 1.
Clean Company Law
According to the law, also known as the Clean Company Law, it falls within the jurisdiction of the Office of the Comptroller General (CGU) to investigate, prosecute, and adjudicate the unlawful acts. The Comptroller General of the Union, Antônio Carlos Vasconcellos Nóbrega, acknowledges that the number is not high, which, in his view, is tied above all to the fact that the law is still recent and also to the time frame, since the rule only applies to unlawful acts committed after it came into force.
The comptroller stated, however, that there is “a growth trend, as we saw occur in 2017,” a year that accounted for 83.6% of the total so far.
“This figure from the federal government shows that, in fact, the law caught on and is being applied. It is constant work that is being improved,” he added. In this regard, the body also works on training civil servants who act directly in the proceedings.
The companies responsible for harmful acts are subject to two types of sanction: a fine of up to 20% of their last gross revenue and publication of the decision in widely circulated media in the group’s area of operation, for a period of 30 days. The publication must be paid for by the offender. According to data from the CGU, corruption aimed at obtaining a specific benefit by means of a bribe is the most common situation. So far, 23 fines have been imposed by the federal bodies, totaling R$ 12 million. Seven companies had their conviction publicly disclosed. The law provides that the funds may be allocated preferentially to the body or entity that was harmed.
Corporate culture – At the state and municipal levels, the total is even smaller. There were only 14 punishments based on the Anti-Corruption Law, consisting of four extraordinary publications and 10 fines, in the amount of R$ 6 million. In many of them, the law has not yet been regulated to, for example, define the gradation of the penalties (dosimetry), which makes applying the rule difficult.
To encourage this to be done, the CGU created materials aimed at the other federative entities, such as the booklet “Suggestions for Decrees for the Regulation of the Anti-Corruption Law in Municipalities,” available on the internet.
The Anti-Corruption Law came into force amid the growth of accusations against large companies, such as Odebrecht, deriving from Operation Car Wash (Lava Jato). In this context, “the private sector itself becomes more aware of the harm caused by this practice,” such as its impact on competition, the comptroller exemplified.
Compliance – For Antônio Carlos Vasconcellos, there has been growth in discussions about compliance, an expression that refers to the internal mechanisms within companies to prevent, detect, and respond to cases of corrupt practices. Periodic communication to the Board of Directors and to the Executive Board, the preparation of regulatory and compliance risk reports, and the maintenance of updated data are some of these practices.
For the future, the expectation is that the culture of private groups in Brazil will also come into question. “The discussion today goes beyond criticism of the bribed party, also reaching the briber and the mechanisms that must be adopted by both to change this scenario,” concluded the comptroller general.
Source: Agência Brasil
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