Brazil Anti-corruption Guide 2022
1. Is your country a member of the OECD Anti-Bribery Convention?
Yes.
2. Is your country a member of any other bilateral or multilateral conventions on anti-corruption?
Yes. Brazil is also a member of the Inter-American Convention against Corruption and the United Nations Convention against Corruption.
3. Are there local anti-corruption laws in your country (focusing on corporations, not individuals)?
Yes. Federal Law n. 12,846/2013, the Brazilian Clean Companies Act (“BCCA”) is the main anti-corruption law for corporations, but other laws governing public tenders may also be applicable if acts of corruption were committed in such context.
4. Can companies be held liable for acts of corruption under civil or administrative law?
Yes. Legal entities are exposed to civil and administrative liability. There is no corporate criminal liability for acts of corruption in Brazil.
5. Is corruption of individuals punishable?
No. Although there are ongoing legislative discussions about the matter, there is no specific statute for the so-called “private-to-private corruption” focusing on corporations. Individuals may be held criminally liable depending on the circumstances of the case considering the lack of a specific statute for private corruption (for example, for embezzlement or for giving or promising equity or non-equity advantages to change or adulterate a sports competition or event result).
6. Are facilitation payments allowed?
No. There is no exemption for facilitation payments under Brazilian law.
7. Is there a legal regulation/maximum limit for accepting or giving gifts, invitations, etc.?
Yes. Federal Decree n. 10,889/2021 prohibits a public official from receiving gifts from legal entities and individuals that have an interest in its official decisions and provides for a limit of BRL 1% of the highest salary of public service for receiving freebies (which would currently amount to approximately BRL 392.00). This Decree, however, is only applicable to public officials from the Executive branch at the federal level. For all other public officials, there is no specific threshold that would be considered acceptable. Prior to Decree n. 10,889/2021, the Code of Conduct of federal high-level public officials set forth the limit of BRL 100,00 for gifts.
8. Are bribes to foreign government officials prohibited?
Yes.
9. Does your legislation have any extraterritorial reach?
Yes. The BCCA applies beyond national boundaries if the company that committed a violation against national or foreign public administration “has headquarters, subsidiary or representation in the Brazilian territory, even if temporarily.”
10. Is it possible to confiscate assets from the company?
Yes. See the answer above.
11. Does your legislation rely on deferred prosecution or non-prosecution agreements or any other type of non-trial resolution for corruption?
Yes. The BCCA allows companies to negotiate leniency agreements with authorities in case of violations of the BCCA and laws governing public tenders. The purpose of a leniency agreement is to reduce fines and sanctions imposed on the company and provide information that serves as investigative leverage to the authorities. As for individuals, Brazilian legislation relies on the Non-Prosecution
12. Can a company be liable for the acts of its intermediaries or third parties?
Yes. The BCCA provides for strict liability, i.e., the company may be held liable for violations committed in their interest or to their benefit regardless of knowledge or consent.
13. Can a parent company be liable for the acts of its subsidiaries?
Yes and no. Under the BCCA, controlling, controlled or companies in any way related, are considered jointly liable for the practice of violations, but restricted to the obligation of payment of fine and full compensation of damages caused.
14. Are there any affirmative defenses or exceptions available to those accused of corruption acts?
No. There is no affirmative defense available for companies. Individuals, however, may use affirmative defenses available in criminal law.
15. Does your jurisdiction impose on domestic entities obligations to implement anti-corruption internal programs?
No. The existence of a compliance program is not a requirement for companies and does not constitute an affirmative defense for legal entities. But it is considered a mitigating factor for calculating the fine under the BCCA. In parallel, laws governing public tenders may require companies to have compliance programs to bid or to perform the contract depending on the circumstances of the contract.
16. Is having a compliance program a defense or mitigating factor, while reviewing sanctions?
Yes. The existence of a compliance program can mitigate fines under Article 7 of the
BCCA.
17. Could the cooperation with the authorities or an own investigation be a defense or mitigating factor?
Yes. Cooperation with authorities is a mitigating factor set forth by Article 7 of the BCCA and conducting an investigation may reinforce the existence of a compliance program, which is also a mitigating factor for fines.
18. Is there any publicly available guideline issued by the authorities in charge of enforcing anti-corruption laws? For example, manuals on compliance programs, leniency agreements, etc. If so, please provide the link.
Yes. The Comptroller General of the Union (“CGU”), a federal anti-corruption agency, regularly publishes manuals and guidelines, including on requirements, evaluation, and implementation of a compliance program. These manuals are available on the following links and, in some cases, are also available in English and Spanish besides Portuguese: https://www.gov.br/cgu/pt-br/c...
https://repositorio.cgu.gov.br/handle/1/44486
Contributor
TozziniFreire Advogados
Karla Lini Maeji, kmaeji@tozzinifreire.com.br