{"id":1809,"date":"2014-06-17T15:49:35","date_gmt":"2014-06-17T18:49:35","guid":{"rendered":"https:\/\/chenut.online\/?p=1809"},"modified":"2014-06-17T15:49:35","modified_gmt":"2014-06-17T18:49:35","slug":"english-the-new-brazilian-anti-corruption-act","status":"publish","type":"post","link":"https:\/\/chenut.online\/english-the-new-brazilian-anti-corruption-act\/","title":{"rendered":"(English) The new Brazilian Anti-Corruption Act"},"content":{"rendered":"

[:en]By Felipe Alves Pacheco<\/strong><\/em><\/p>\n

 <\/p>\n

Used as a political instrument by the Brazilian Federal Government in response to the popular protests that happened in mid-2013, the Act n\u00ba 12.846, of 1st August 2013, entitled as \u201cAnti-Corruption Act\u201d, entry into force on January 29th, 2014, in the midst of polemics, but promising to have an impact in the way that business is made in Brazil.<\/p>\n

Regarding its immediate nature, the Act intends to attend international agreements assumed by the Brazilian Government, especially the \u201cConvention on Combating Bribery of Foreign Public Officials in International Business Transactions\u201d of the Organization for Economic Co-operation and Development (OECD), finished in Paris in the year 1997.<\/p>\n

Despite the granted popular name \u2013 \u201cAnti-Corruption Act\u201d \u2013 the new statute is not restricted to actions concerning corruption, but covers all actions \u201cthat threaten the national or international public patrimony, against the principals of the government or against the international agreements assumed by the Brazilian Government.\u201d<\/p>\n

It is therefore noteworthy that the 5th article of the Act has a wide reach, given that the typical actions in the regulation have a purely illustrative nature, in a way that any actions considered as harmful to the government will be punishable, both administratively and in court.<\/p>\n

The Act\u2019s only aim is to hold the legal entity liable \u2013 both in a civil and administrative scope \u2013 instead of its management and employers or the public servants involved in the corrupt actions. To these individuals remains the possibility of being punished by other Acts concerning such violations, as the Act of Misconduct in public office, the Act of Bidding Process and Public Agreements and the Penal Code.<\/p>\n

Nevertheless, there is also the possibility of the members and managers of the companies be held liable by the sanctions of the law, administratively and in court, in case the disregard of the legal entity is determined. In that case the assets of the members and managers may be affected if the company is used to facilitate, cover up or conceal illegal practices.<\/p>\n

Unlikely the individuals, that are subjectively held accountable by their actions, the new law sets forth that the legal entity will be, from now on, strictly liable by any harmful action that it practices \u201cin their behalf or interest\u201d. Therefore, the companies and general partnerships, incorporated or not, the associations, the foundations, the foreign companies that have its head office, branch or representation in Brazil, as well as the Brazilian companies that operate abroad, can be held liable by the Anti-Corruption Act.<\/p>\n

The Act, nevertheless, stipulates that the liability of the legal entity is restricted. Thus, the occurrence of the damage is all that matters, on behalf or in interest of the legal entity, for it to be liable administratively and in court, regardless of intent or fault.<\/p>\n

In these terms, the mere occurrence of a prohibited action, linked to a legal entity and, hence, leads to damage to the Government, will result in the liability of the company.<\/p>\n

Therefore, hypothetically, if an employee, by its free will, offers a bribe to a public servant to obtain an environmental permit to the company, without the previous authorization or consent of his superiors, this company might suffer the sanctions as provided by the Anti-Corruption Act.<\/p>\n

In accordance to Mar\u00e7al Justen Filho1<\/sup>, \u201cthere is an absolute presumption that, if the employee involved the company in corruption, this was a result of the lack of organizational and managing programs\u201d.<\/p>\n

This is, in fact, the most controversial issue of the Anti-Corruption Act. Many corporate entities, for example, understand that i) if the company adopted all measures to prevent and counter corruption, and ii) if after the proper investigation, it is proved that the harmful action to the Government was a result of an detached action of an employee; the company should be exempted of any responsibility.<\/p>\n

However, the Act only considered the case above as a mitigating circumstance (article 7) to define the sanction to be applied to the company. So, in the process to evaluate the penalties, a less serious sanction will be applied as a result of the implement of corporate governance policies within the company, the so called compliance policies.<\/p>\n

In this given context, the authority itself may institute the punitive administrative process when an illegal action is verified, in which the right of defense of the company is guaranteed. By the end of the investigative process, and having been understood by the judging authority that an infraction of the Act was committed, the company may suffer the following penalties:<\/p>\n