On July 12, 2022, the Presidency of the Republic published Decree No. 11,129/2022 with changes in the regulation of the Anti-Corruption Law (Law No. 12,846/2013), which provides for the administrative and civil liability of legal entities for acts against the national or foreign public administration. The published instrument will came into effect on July 18, 2022 and revokes Decree No. 8,420/2015 previously in force.
In relation to the previous decree, the new Decree No. 11.129/2022:
- Improves the preliminary investigation procedure, listing the necessary steps to elucidate the facts under investigation, and details the procedural rite of the administrative process of accountability;
- Changes the percentages of reduction and increase on the basis of calculation of fines, increasing to up to 3% the aggravating of the participation of senior management and reducing to 0.5% the mitigating factor of non-consummation of the infraction, among other changes;
- It also raises the reduction percentage to up to 5% of the fine value’s if the legal entity proves that it applies an integrity program;
- Details and includes parameters for the evaluation of compliance programs, such as (i) communication of the program and proper destination of resources; (ii) due diligence procedures prior to hire brokers, consultants, commercial representatives and associates, as well as PEPs and their families, close relationships and legal entities in which they participate, and carrying out proper verification prior to execution and monitoring of sponsorships and donations and (iii) implementation of protocols for investigating complaints, among others;
- Brings better precision to the concept of “gained advantage”, defined as the “monetary equivalent of the illicit proceeds, understood as the gains or profits obtained or intended by the legal entity as a direct or indirect result of the practice of the harmful act”;
- Presents the signature of the memorandum of understanding, within the scope of the leniency agreement, as a hypothesis of interruption and suspension of the statute of limitations for the negotiation period (limited to 180 days);
- It presents the execution of a leniency agreement as a hypothesis of interruption of the statute of limitations, under the terms of the Anti-Corruption Law, until the commitments entered into in the agreement are fulfilled or until its termination;
- The new standards established by Decree No. 11,129/2022 reinforce the trend towards improving anti-corruption legislation and encouraging the adoption of a compliance program;
- The implementation of an effective compliance program contributes to the reduction of fines and the mitigation of other sanctions to which public and private entities are subject under the Anti-Corruption Law.
Trench Rossi Watanabe’s Compliance Group is available to assist its clients on planning, implementing and monitoring compliance measures that are effective and consistent with the legal and regulatory requirements and with the best market practices.