First Consequences of Law No. 12.846/2013

Eduardo Henrique Soerensen Garcia

In recent years we have seen in the world scenario a clear decrease in tolerance for corruption, especially in countries with higher levels of economic and social development, i.e., countries in North America, Europe and Oceania.

It is clear that the maintenance of undeclared funds in tax havens with impunity will be increasingly less likely in the coming years. Several banks and companies, and even the aristocracy, have been investigated and convicted (or even signed millionaire agreements to avoid a conviction) for facilitating the concealment of values ​​obtained illegally.

Some investment funds are now prohibited from investing their monetary assets in companies involved or convicted in investigations for corruption. Likewise, it is common to insert clauses providing for the acceleration of loan agreements, with the consequent obligation to repay immediately the borrowed value by corrupt companies.

Nationally, foreign companies in compliance with international anti-corruption standards, especially the FCPA (Foreign Corrupt Practices Act) and the Bribery Act (British anti-corruption law) have long established in its Brazilian controlled companies a compliance policy, requiring an alignment of their business and operation with the anti-corruption practices.

It took a long time, but Brazil was not left out. As a result of external and internal pressures against corruption, on 08/02/2013, Law 12.846 was published, providing for the civil and administrative liability of legal entities for the commission of acts against the Brazilian or Foreign Government, immediately named Anticorruption law.

Any discussion of the legal aspects and effects of such new legal act, which came into force in February this year, may be premature and will be nothing but speculation, because the decree that will regulate the matter is pending issuance. However, the interest in the matter is noteworthy, which proves that, by causing legal entities to be subject to strict liability for corrupt practices, the legislator apparently hit the target. So far, only individuals had been subject to legal sanctions (provided in the Criminal Code, for instance), and they usually relied on the protection of the companies at which they worked, which are, most of the time, the true corrupts, making it very difficult to convict them, in practical terms.

In this scenario, some more serious companies concerned not only with fines but also almost irreparable damage to its reputation and its shareholders’ reputation that could be caused by involvement in a corrupt practice, have initiated internal programs for review and compliance of their practices.

The compliance requires special attention; it will ever achieve its purpose only as mitigation for a possible sanction under the Anti-Corruption Law (Article 7, VIII).

The use of prefabricated and opportunistic “off-the-record” programs is dangerous and ineffective and does not reach the particularities of each company, and, with time, the illegal practices will resume.

I understand that the assumptions listed below are essential safeguards for the development of any program:

a) the permanent participation of officers and directors of the company (“tone at the top”) as sponsors of the program is critical;

b) Regular training is likewise indispensable;

c) There is no materiality when dealing with corruption. Therefore, the consultants responsible for the program must invest time to know deeply the company, its goals, procedures and challenges, suppliers, customers and relations with government agencies;

d) Even though the Brazilian Anti-Corruption Law provides for the administrative and civil liability of legal entities for the commission of acts against the Government, compliance must necessarily take into account transactions with other private companies.

In this first year of enactment of the Anti-Corruption Law it is possible to check the increasing deployment of compliance programs in corporate structures. Thus, the logical tendency is to create a differentiated sector, more concerned with the transparency of its procedures and forming a new sense of good conduct.