Anticorruption, Formalization, Business Ethics, Anti-Piracy, Code of Conduct, Respect for Employees, Customers and Suppliers are closely linked concepts and refer to the behavior that individuals and companies should have when in societies under the rule of law.
One of the pillars of ABES since its foundation is the fight against informal business, the defense of intellectual property, the exercise of honesty in dealing with public and private agents, in short, the guarantee of ethical relations at all levels.
I had the opportunity to read the excellent article “Anti-Corruption Compliance: Threatened Companies!”, lawyers and teachers Thiago Luís Sombra and Carlos Odon Lopes da Rocha, and requested authorization to publish it on ABES channels. This text clarifies the risks that companies run because they do not have formal programs to fight corruption. Offenses can lead to heavy fines and even the dissolution of companies in the event that any employee or supplier is involved in illegal acts, even without the management's knowledge.
These risks can criminally affect managers and shareholders and must be mitigated by formal compliance programs. Nothing to do in this case does not mean that you are protected, perhaps, on the contrary. Good reading!
Francisco Camargo, president of ABES
The Anticorruption Law (Law 12.846 / 2013) has been applied more and more severely. With its regulation by Decree no. 8420/2015, companies that are caught violating some of their articles are at risk of paying fines of up to 10% of their annual turnover.
Eventually, the company may even be dissolved. Add to this extremely high risk the irreparable damage to the company's image, the loss of customers, suppliers and the punishment of federal, state and municipal inspection and control bodies.
How is your company seen within a certain business segment? How does it operationalize its integrity and corporate responsibility practices? Does your company value Formality, Ethics in relations and business? Does your company adopt protection mechanisms in its relations with third parties and with the public authorities? Are you afraid that your company will be surprised by investigations due to the way it conducts its negotiations?
In large part, the answers to these questions are associated with what is called anti-corruption measures. In the current political and economic situation in the country, the adoption of mechanisms to protect business activity has become a necessity for the preservation of corporate governance, the ethical development of business activity and the optimization of profits.
A company that ignores the potential risks of its relations with third parties and with the public authorities becomes the focus of the dissemination of corruption cases. However, after the entry into force of the Anti-Corruption Law (Law 12.846 / 2013), it is up to companies to take preventive action to prevent, detect and punish illegal acts and ethical misconduct by their employees, administrators and directors.
Among the punishments provided for by the Anti-Corruption Law, the offending company may be:
- suspended or partially banned;
- compulsorily dissolved;
- prohibited from receiving incentives, subsidies, subsidies, donations or loans from public bodies or entities and from public financial institutions or controlled by the Public Power, for a maximum period of 05 (five) years;
- fined in the amount of 0.1% to 20% of gross revenue or, if it is not possible to measure the billing, in the amount of R$ 6,000 to R$ 60,000,000.00 (from six thousand to sixty million).
The Anticorruption Law allows direct liability of the company, without the need to prove guilt or deceit in relation to the unlawful act practiced by any employee or representative, when they violate public assets, the principles of the Administration or the international commitments assumed by Brazil . In other words, the misconduct of an employee's conduct will result in the legal entity being held responsible, jeopardizing its economic activities.
Eventually, it may even compromise its administrators if the company does not have a clear anti-corruption program and a Code of Ethics made publicly available to all employees, suppliers, customers and public agents.
To avoid situations of this nature, the compliance Anticorruption represents a set of internal measures and procedures, which allow preventing or minimizing the risks of corruption, as well as detecting them quickly and efficiently.
Through the adoption of an integrity program or compliance awareness of professionals is carried out so that the organization always acts within the framework of corporate ethics and formalization. This helps to avoid reputational damage, in addition to reducing costs and contingencies resulting from investigations and repeated analysis of new partners and suppliers. The compliance program involves 05 (five) main aspects:
- policies, controls and procedures;
- risk mapping and analysis;
- management and leadership support;
- communication and training;
- monitoring, auditing and remediation.
The Anticorruption Law can lead to the imposition of significant fines and, even, to the compulsory dissolution of the company, which is why managers should be concerned with the permanent compliance with its provisions.
In order to demonstrate an irreversible tendency in the business celebrated in the country, the Chamber of Foreign Trade conditions the official support to exporting companies to the compliance with the anti-corruption norms and the implementation of a compliance program. Since 2014, the BNDES only grants credit to exporting companies if they adopt integrity measures.
It is not expected that a compliance program completely avoids any misconduct on the part of employees or administrators. However, they will contribute so that ethically committed organizations have means to reduce the likelihood of corruption cases, due to the diligent and vigilant institutional stance.
Thiago Luís Sombra, Lawyer, Arbitrator of the ICC - International Chamber of Commerce, Professor of Law at the University of Brasília, he was Attorney of the State of São Paulo and advisor to the Minister of the Superior Court of Justice, thiago@odonsombra.com.
Carlos Odon Lopes da Rocha, lawyer, Federal District Attorney, Professor of Law at the University of Brasília, member of the Anti-Corruption Law Regulatory Commission, odon@odonsombra.com.
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