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By Denise Vaz * and Carolina Marzano **
After three years in force, the Anti-Corruption Law (Law 12.846 / 2013) has as its balance the conclusion of several leniency agreements and the initiation of administrative investigations, with news of 29 procedures only within the scope of Operation Lava Jato.
The penalties provided for by this Law can range from a fine of 6 thousand reais to the compulsory dissolution of the company, which in practice represents the condemnation of the "death" of a company.
The scope of the Law is such that apparently innocent acts, such as invitations for public officials to speak or attend events; end-of-year gifts and equipment donations to public agencies can be interpreted as "attempts at corruption", regardless of guilt or deceit.
There is little care, as companies, associations, foundations, of any size and with any legal organization can be framed and eventually "executed" (liquidated) by acts or omissions of employees or even third parties belonging to the same value chain.
In addition to the rigor of the sanctions, there is the legal uncertainty about the way in which the Public Administration acts for its imposition, considering the diffuse competence attributed by the Law to the various bodies of the three branches and the federative entities for investigating violations, in addition to the lack of uniformity in the treatment of the topic.
In this scenario that is not encouraging for businesspeople, the Anticorruption Law transfers the duty of inspection to the private sector, imposing the adoption of a set of internal measures that will prevent or minimize the risk of violating the laws resulting from activities practiced by an economic agent and any of its partners or collaborators, the so-called compliance.
We will return to these matters below and suggest, in the end, the adoption of 6 measures that can reduce the risk of the company being a victim of this Law.
Legal Aspects
Since January 29, 2014, the Anti-Corruption Law has been in force to provide for administrative and civil liability of legal entities for the practice of acts against public administration, national or foreign.
Created in a scenario of post "Mensalão" and beginning of "LavaJato", it was called "Anticorruption Law" or "Clean Company Law", since it allowed companies to be punished for acts of corruption involving Brazilian or foreign public officials, thus filling a gap in Brazilian law, which previously provided for only the punishment of individuals, responsible for the practice of acts of corruption - active or passive -, as provided for in the Brazilian Penal Code.
Brazilian law sought to incorporate foreign institutes, such as the "Convention on Combating Corruption of Foreign Public Officials in International Business Transactions" of the OECD - Organization for Economic Cooperation and Development - and also the FCPA - "The Foreign Corrupt Practices Act" of United States of America, and the "UK Bribery Act", from the United Kingdom, aimed at curbing corrupt practices abroad.
It is important to point out that, although the legislator has chosen to give this law an administrative guise, by matching conduct with the aforementioned articles of the Penal Code, as well as by the severe sanctions provided for, the Anticorruption Law must be seen as a criminal law.
However, while criminal liability is prohibited in objective law - understood, in brief lines, as that attributed independently of the determination of intent or guilt, knowledge and participation - the Anticorruption Law provides for this form of accountability of the legal person, not excluded, with this, also the individual responsibility of the directors or individual administrators.
It is important to note that liability is not restricted to acts performed by company executives or employees, but also includes those committed by third parties, for their benefit, as suppliers and dispatchers, even without the company's knowledge.
Any company can be held responsible, regardless of its size or formal constitution, since the Law expressly applies to business or simple companies, personified or not, as well as to foundations and associations. Marked by extreme scope, the Law also allows the disregard of the legal personality to impose sanctions personally on partners and administrators, when there is an abuse of rights or confusion of assets.
Based on this, aside from the discussion of the constitutionality, or not, of the mentioned objective accountability, the fact is that the sanctions that can be imposed based on Law 12.846 / 2013 are quite strict, and may vary between the application of a fine of R$6.000, 00 (six thousand reais) to R$60,000,000.00 (sixty million reais), up to 20% (twenty percent) of the company's gross revenue in the year prior to the initiation of the administrative proceeding, and it is also possible to file a lawsuit for forfeiture of assets, rights or values obtained with the infraction, suspension or partial interdiction of the company's activities or the compulsory dissolution of the company.
Beyond constituting an international management model, risk prevention, early identification of problems, recognition of wrongdoing in other companies, reputational benefit and / or a reduction in costs and contingencies, the adoption of these measures must be seen by entrepreneurs as a important mechanism to mitigate the sanctions that may be imposed, and even, according to the specific case, contribute to the eventual acquittal of the legal entity in an administrative process of accountability or legal action.
This is because, although the determination of a certain conduct is riddled with subjectivism, Decree 8,420 / 2015 - which regulates the Anticorruption Law - provides for a true arithmetic calculation for the application of sanctions, with positive and negative factors.
In this sense, the biggest factor for reducing the sanction is that provided for in item V of article 18: "one percent to four percent to prove that the legal entity has and applies an integrity program, according to the parameters established in Chapter IV" .
Compliance
It is important to emphasize, before enumerating some of the possible measures, that compliance must be solid, effective and independent, and cannot be a purely formal institute.
Compliance measures are:
1. Hiring a Compliance Officer, who can be outsourced;
2. Creation of codes of ethics and conduct; with models available publicly on the internet, but which must be tailored to the company's particularities;
3. Conducting internal audits and investigations, accompanied by appropriate responses and clear and effective sanctions;
4. Adoption of mechanisms to allow anonymous reports;
5. Constant training and communications; frequency and sequence are essential;
6. Definition of guidelines for working with public officials and financial agents.
Only with the adoption of a serious compliance system, aimed at the formation of an organizational culture and the effective fight against corruption, legal entities will be able to prevent and reduce their risks, mitigating the interference and constant attempt to sanction by the State.
The penalties provided for by this Law can range from a fine of 6 thousand reais to the compulsory dissolution of the company, which in practice represents the condemnation of the "death" of a company.
The scope of the Law is such that apparently innocent acts, such as invitations for public officials to speak or attend events; end-of-year gifts and equipment donations to public agencies can be interpreted as "attempts at corruption", regardless of guilt or deceit.
There is little care, as companies, associations, foundations, of any size and with any legal organization can be framed and eventually "executed" (liquidated) by acts or omissions of employees or even third parties belonging to the same value chain.
In addition to the rigor of the sanctions, there is the legal uncertainty about the way in which the Public Administration acts for its imposition, considering the diffuse competence attributed by the Law to the various bodies of the three branches and the federative entities for investigating violations, in addition to the lack of uniformity in the treatment of the topic.
In this scenario that is not encouraging for businesspeople, the Anticorruption Law transfers the duty of inspection to the private sector, imposing the adoption of a set of internal measures that will prevent or minimize the risk of violating the laws resulting from activities practiced by an economic agent and any of its partners or collaborators, the so-called compliance.
We will return to these matters below and suggest, in the end, the adoption of 6 measures that can reduce the risk of the company being a victim of this Law.
Legal Aspects
Since January 29, 2014, the Anti-Corruption Law has been in force to provide for administrative and civil liability of legal entities for the practice of acts against public administration, national or foreign.
Created in a scenario of post "Mensalão" and beginning of "LavaJato", it was called "Anticorruption Law" or "Clean Company Law", since it allowed companies to be punished for acts of corruption involving Brazilian or foreign public officials, thus filling a gap in Brazilian law, which previously provided for only the punishment of individuals, responsible for the practice of acts of corruption - active or passive -, as provided for in the Brazilian Penal Code.
Brazilian law sought to incorporate foreign institutes, such as the "Convention on Combating Corruption of Foreign Public Officials in International Business Transactions" of the OECD - Organization for Economic Cooperation and Development - and also the FCPA - "The Foreign Corrupt Practices Act" of United States of America, and the "UK Bribery Act", from the United Kingdom, aimed at curbing corrupt practices abroad.
It is important to point out that, although the legislator has chosen to give this law an administrative guise, by matching conduct with the aforementioned articles of the Penal Code, as well as by the severe sanctions provided for, the Anticorruption Law must be seen as a criminal law.
However, while criminal liability is prohibited in objective law - understood, in brief lines, as that attributed independently of the determination of intent or guilt, knowledge and participation - the Anticorruption Law provides for this form of accountability of the legal person, not excluded, with this, also the individual responsibility of the directors or individual administrators.
It is important to note that liability is not restricted to acts performed by company executives or employees, but also includes those committed by third parties, for their benefit, as suppliers and dispatchers, even without the company's knowledge.
Any company can be held responsible, regardless of its size or formal constitution, since the Law expressly applies to business or simple companies, personified or not, as well as to foundations and associations. Marked by extreme scope, the Law also allows the disregard of the legal personality to impose sanctions personally on partners and administrators, when there is an abuse of rights or confusion of assets.
Based on this, aside from the discussion of the constitutionality, or not, of the mentioned objective accountability, the fact is that the sanctions that can be imposed based on Law 12.846 / 2013 are quite strict, and may vary between the application of a fine of R$6.000, 00 (six thousand reais) to R$60,000,000.00 (sixty million reais), up to 20% (twenty percent) of the company's gross revenue in the year prior to the initiation of the administrative proceeding, and it is also possible to file a lawsuit for forfeiture of assets, rights or values obtained with the infraction, suspension or partial interdiction of the company's activities or the compulsory dissolution of the company.
Beyond constituting an international management model, risk prevention, early identification of problems, recognition of wrongdoing in other companies, reputational benefit and / or a reduction in costs and contingencies, the adoption of these measures must be seen by entrepreneurs as a important mechanism to mitigate the sanctions that may be imposed, and even, according to the specific case, contribute to the eventual acquittal of the legal entity in an administrative process of accountability or legal action.
This is because, although the determination of a certain conduct is riddled with subjectivism, Decree 8,420 / 2015 - which regulates the Anticorruption Law - provides for a true arithmetic calculation for the application of sanctions, with positive and negative factors.
In this sense, the biggest factor for reducing the sanction is that provided for in item V of article 18: "one percent to four percent to prove that the legal entity has and applies an integrity program, according to the parameters established in Chapter IV" .
Compliance
It is important to emphasize, before enumerating some of the possible measures, that compliance must be solid, effective and independent, and cannot be a purely formal institute.
Compliance measures are:
1. Hiring a Compliance Officer, who can be outsourced;
2. Creation of codes of ethics and conduct; with models available publicly on the internet, but which must be tailored to the company's particularities;
3. Conducting internal audits and investigations, accompanied by appropriate responses and clear and effective sanctions;
4. Adoption of mechanisms to allow anonymous reports;
5. Constant training and communications; frequency and sequence are essential;
6. Definition of guidelines for working with public officials and financial agents.
Only with the adoption of a serious compliance system, aimed at the formation of an organizational culture and the effective fight against corruption, legal entities will be able to prevent and reduce their risks, mitigating the interference and constant attempt to sanction by the State.
* Denise Vaz is Managing Partner of Provasi Vaz Sociedade de Advogados, specialist in the corporate criminal area, professor at FGV and UNIP, bachelor's, master's and doctorate degrees from USP Law School
** Carolina Marzano is a lawyer at Mackenzie University, post-graduated by the OAB / SP School of Law in Intellectual Property and specialized in Compliance by INSPER - Institute of Education and Research, currently responsible for implementing the ABES Compliance Program
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