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Decreto Executivo regulamenta a Lei Anticorrupção


3/20/2015 9:00 PM Demarest News

Presidential Decree provides guidelines on the Clean Companies Act 
 
Aimed at providing guidelines on the responsibility of legal entities for the commitment of illicit actions against the interests of the local and foreign Public Administration, as provided in Law 12.846/13,  Presidential Decree n. 8.420/15 came into force on March 19, 2015. The Decree was enacted as part of the so-called "Anti-corruption Pack", and besides dealing with the procedure for determining the administrative responsibility of legal entities, it provides for equally relevant matters that include administrative sanctions and the referral to the Judiciary of complementary measures to be taken in Brazil as well as in foreign jurisdictions.
 
The administrative sanctions may be applied upon the application of fines and by the publication of the award-making decision on the webpage of the legal entity and in the press of the place where the illicit action occurred. Additionally, the Decree ruled the referral to the Judiciary agents of measures required for the effective sanctions provided in Article 19 of Law 12.846/13, which include the loss of assets acquired as a result of the illicit actions, suspension of legal entities' activities  or their compulsory dissolution, further to the ban on fund raising from public entities, including state-owned banks. Conditions of leniency agreements are also contemplated in the Decree.
 
The Decree created the national database of punished legal entities (Cadastros Nacionais de empresas inidôneas e punidas). In that regards, it determines that the database shall contain information on administrative sanctions regarding the participation in public bids or in entering into administrative agreements.
 
RULES FOR SETTING UP COMPLIANCE PROGRAMS
 
The Decree finally spelled out the rules that the legal entities must observe with a view to define the key aspects of their compliance programs. Thus, in order to regulate item VIII of Article 7 of Law 12.846/13, the Decree defined compliance program as a group of mechanisms and integrity procedures, including audit and whistleblowing incentives to the effective application of codes of ethics, policies and guidelines for the sake of detecting and curing deviations, frauds, irregularities and illicit actions committed against the Public Administration.
 
The existence and application of all elements of a compliance program by the legal entity shall be taken into consideration within assessment procedures to determine its involvement and responsibility in wrongdoings, leading to the definition and application of respective sanctions. The legal entity may present the program to the committee in charge of the procedure as an element of defense, which shall be evaluated based on certain parameters; the program, as applied, may give rise to the reduction of the sanctions. Therefore, the Decree contemplated evaluation parameters that include, among others:
 
 

the confirmation of commitment of irregularities or the existence of vulnerabilities within the organization of legal entities involved in mergers and acquisitions and corporate restructurings;

the existence and maintenance of accounting records for all activities of the legal entity, in such a way to assure, upon effective internal controls, the immediate issuance of reliable reports and financials;

the level of commitment of the legal entity's upper administration, evidenced by the support to the program, the existence of conduct standards, code of ethics, policies and integrity procedures, which must be disseminated throughout the organization, encompassing workers and administrative executives, without distinctions of any sort, also applicable to third party contractors;

evidence that the legal entity periodically performs training sessions with its personnel on the compliance program, as well as promotes the continuous monitoring and the adaptation of the program as a result of identification of risks related to its activities, in order to streamline the prevention, detection and combat to the occurrence of illicit actions against the Public Administration;

procedures destined to prevent situations of fraud occurring during the relationship of the legal entity with the Public Administration, even in the case of intermediation of third parties, including public bids, administrative contracts, inspections and granting of authorizations, licenses, permits and certificates and

the existence of communication channels for denounces, available for use by all the employees, including third parties and mechanisms to protect the whistleblowers acting in good faith.

 
 
Lastly, although very detailed, all these compliance program evaluation elements may still be amended by the Office of the Comptroller General (CGU), upon enactment of administrative ordinances, norms and procedures.
 

Demarest Advogados
Compliance

 

Bruno Drago bdrago@demarest.com.br 55 11 3356-1776
​Fabio Braga fbraga@demarest.com.br ​55 11 3356-1668
​Renato Poltronieri rpoltronieri@demarest.com.br 55 11 3356-1828
Fabíola Rodrigues frodrigues@demarest.com.br 55 11 3356-1738
Paulo Dantas pdantas@demarest.com.br 55 11 3356-2117

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