- Source: Brazilian Anti-Corruption Act
The Brazilian Anti-Corruption Act (Portuguese: Lei anticorrupção), officially Law No. 12,846 of 1 August 2013 and commonly known as the Clean Company Act (Lei da Empresa Limpa), is a Brazilian law enacted in 2013 targeting corrupt practices among legal entities doing business in Brazil. It defines civil and administrative penalties, as well as the possibility of reduction in penalties for cooperation with law enforcement under a written leniency agreement signed and agreed to between the companies and the government.
The law is directed only at juridical persons which includes corporations and other institutions, but not individuals, who are covered by other laws.
The Act has been invoked numerous times, resulting in leniency agreements returning billions of reals to the Brazilian Treasury, notably the agreement with Odebrecht S.A., which by itself was responsible for twelve billion reals.
History
The anti-corruption law is directed at legal entities (pessoas jurídicas) only. This includes corporations and other institutions, but not individuals (pessoas físicas). Under this law, corporations are administratively and civilly liable for acts of corruption. Criminal liability in Brazil due to acts of corruption applies only to individuals, so there is no possibility of criminal liability for a corporation. Corruption and other criminal acts by a company or other business organization can result in criminal sanctions only for its employees, partners or other natural persons who have committed the acts, and the public prosecutor may decide to charge them with criminal acts punishable by prison, but that is a separate juridical procedure targeting a "natural person".
To avoid more serious penalties resulting from corruption investigations, companies may decide to cooperate with the investigation voluntarily, and enter into a leniency agreement as prescribed by the law. This may reduce their fines by up to two thirds. Other advantages to self-disclosure and signing a leniency agreement include exemption from other provisions of the Clean Company Act which otherwise requires publication of the legal decision imposing the fines, a prohibition from receiving grants from public institutions, and restrictions on taking part in bids on public projects.
The law was amended in 2015 to make certain improvements based on experience up to that point. Provisional Measure 703/2015 made it easier for companies to apply for the benefits of a leniency agreement, and also changed the nature of the benefits. The previous cap for reduction in penalties was 2/3, and this law changed the cap to 100%. Formerly, only the first company to apply for leniency were permitted, and only before a lawsuit had commenced. These provisions were removed. The amendment also established a compliance, audit, and reporting requirement which was added to the law.
Leniency agreements
Leniency agreements (Acordo de Leniência) are defined under the Brazilian Anti-corruption Act in article 16. They target Brazilian companies and foreign companies with a presence in Brazil who are involved in corruption investigations. Under the law, companies are responsible for corruption and can face heavy penalties, a restriction on participation in future bids, confiscation of their assets, suspension of business activity, or dissolution.
= Related agreements
=Brazilian companies have been involved in corruption investigations in countries outside Brazil, some in collaboration with Brazilian justice, and have paid fines in agreements reached in such procedures. The most notable case was the investigation of Brazilian construction corporation Odebrecht carried out by the United States and Switzerland with the cooperation of the Brazilian government. As a result of the investigation into kickbacks paid to hundreds of politicians, including presidential candidates, as well as to judges on the Supreme Federal Court, Odebrecht agreed to pay a record fine of R$ 6 billion ($1.5 billion) in a leniency agreement. in a case described by attorney general Deltan Dallagnol as the "largest damages agreement in the history of the world".
= Examples
=Some leniency agreements signed by July 2018 include:
SBM Offshore: R$ 1.22 billion ($309 million)
Odebrecht: R$ 2.72 billion ($690 million)
MullenLowe and FCB Brasil: R$ 53.1 million ($13.5 million)
Bilfinger: R$ 9.8 million ($2.5 million)
UTC Engenharia: R$ 574 million ($146 million)
= Comparison with plea bargains
=Clean Company leniency agreements in Brazil apply exclusively to juridical persons, i.e., corporations or other business entities, but not individuals, and are not the same as plea bargain agreements (colaboração premiada) which apply only to natural persons, i.e., people. Plea bargain agreements may be reached with executives or employees of those corporations to avoid personal fines or prison time.
Individuals accused of involvement in corruption schemes may enter into plea bargains with the Public Prosecutor's Office (MPF) on their own. These individual agreements are known commonly as Portuguese: colaboração premiada, lit. 'rewarded collaboration', and officially as Portuguese: delação premiada, lit. 'rewarded whistleblowing'.
Although leniency agreements and plea bargains under Brazilian law are similar in the sense that they both have legally defined reductions in penalties, monetary on the one hand, monetary or prison time on the other, their differences under Portuguese law is clear: the acordo de leniência is civil and administrative, and applies exclusively to juridical persons (business entities); the colaboração premiada (a.k.a. delação premiada) are for people only. They are covered by different laws. Some English sources which translate these terms observe the distinction, and others may be more lax, and confuse the two; they may use the term plea bargain (or plea deal) for both.
The first page of the affidavit between the United States Department of Justice and Odebrecht was filed in District Court in New York, and names it as a "plea agreement" (number 16-643), with the parties involved in the agreement named as "United States of America" and "Odebrecht, S.A., defendant", in which it specified a 25% reduction in penalties in exchange for the investigation assistance already provided and other remedies.
Related laws
Other important anti-corruption laws passed in Brazil include laws such as Law No. 12,527 of 18 November 2011 (Freedom of Information Act), Law No. 12,813 of 16 May 2013 (Conflict of Interests Act; Conflito de Interesses), Law No. 12,850 of 2 August 2013 (Organized Crime Act; Lei das organizações criminosas), and Law No. 12,683 of 9 July 2012 (amended the Money Laundering Act)
See also
Notes
References
External links
Constituição Da República Federativa Do Brasil De 1988 (in Portuguese)
Constitution of the Federative Republic of Brazil (in English) pdf; 432 pages
Official Senate legislation search engine for Brazilian law
Unofficial translations of Brazilian law into English
Anti-Corruption Act (full text) (in English and Portuguese)
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- Brazilian Anti-Corruption Act
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