* By Carolina Marzano
The Anticorruption Law (Law 12.846 / 2013) instituted in Brazil the objective administrative and civil liability of legal entities for the practice of acts against public administration, national or foreign, which generated a great concern on the part of the business sector, in view of the possibility companies are sentenced to very severe procedural penalties. On the other hand, said Law considers ethics and integrity mechanisms effectively adopted by the company that is undergoing a process of accountability as a mitigating factor, when measuring the eventual penalty to be applied.
It is essential to clarify that any and all Brazilian companies are subject to the Anti-Corruption Law, which can be sanctioned to its full extent. It is absolutely wrong to think that said Law is only applicable to companies that negotiate with the Government, since, in order to be able to operate, all companies must relate to Public Bodies, whether in the fulfillment of their fiscal responsibilities, in contracting services or obtaining licenses and permits. Another recurring misconception is to assume that only multinationals and large companies are affected by the Anti-Corruption Law when, in fact, the market currently requires third parties and service providers to have an Integrity Program in place in order to be able to be hired.
In this scenario, whether to be cautious and have an eventual reduced sentence, to participate in public tenders, to be able to provide their services or supply their products, many companies started to implement Integrity Programs only on paper, however, with no effectiveness in practice. Codes of Ethics and Conduct started to be written proforma and filed, just to mention that they exist, without creating and disseminating a culture of stimulating the attitude of acting within an ethical standard of behavior, in compliance with internal and external laws and regulations. . “Compliance” has become a widely adopted term in theory, but it is not always reflected in the routine of companies, where we do not see its basic principles being applied.
Decree No. 8,420 / 2015 brought the definition of an Integrity Program in its art. 41: “Integrity program consists, within the scope of a legal entity, of the set of internal mechanisms and procedures for integrity, auditing and encouraging the reporting of irregularities and the effective application of codes of ethics and conduct, policies and guidelines with the objective of detect and remedy deviations, fraud, irregularities and illegal acts against public administration, national or foreign. ” Absent these elements, there is no need to talk about an effective Integrity Program and, therefore, the benefits resulting from it, that is, the mitigation of possible administrative sanctions and the construction of a positive image of the company, generating business opportunities and reducing costs.
In order to comply with the Anti-Corruption Law and other legal provisions in force, ABES - Brazilian Association of Software Companies was one of the first professional associations to implement its Internal Integrity Program. Then, in order to promote Ethics and Integrity in the ICT Sector, disseminating and strengthening these concepts among member companies, it created the Program “An Ethical Company” (https://www.umaempresaetica.com.br), which raises awareness and encourages its associates to formally adopt the highest ethical standards in dealing with their affairs, internal or external; improve the standard of behavior in the relationship with customers, suppliers, competitors, employees and government agents; and to create formal norms to implement these standards. The program has three fundamental pillars: Compliance Policy Template; Training and Independent Reporting Channel, offered free of charge to Associates. In addition, it makes available to companies the advice of the Compliance area and the entity's Legal Department to resolve doubts when developing their own Integrity Programs.
Beyond the possibility of closing contracts and mitigating possible penalties, the culture of ethics and integrity must be implemented, in fact, in a company out of respect for the Laws, fair competition and a suitable business environment. Companies committed to the dissemination and fulfillment of their values are increasingly recognized by the market and by consumers. In a world where corruption is no longer accepted, ethics has ceased to be a simple concept and has become a corporate asset.
* Carolina Marzano is a Compliance Officer and adviser to ABES Committees.
EN 
PT 
