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Presidency of the
Republic
Office of the President´s Chief of Staff
Division for Legal Affairs
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Establishes the rules
that discipline the civil and administrative liability of legal entities that
carry out acts against national or foreign governments, and lays down other
provisions.
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THE PRESIDENT OF THE REPUBLIC
I hereby make known that the National Congress decrees and I sanction
the following Law:
CHAPTER I
GENERAL
PROVISIONS
Article 1.
This Law provides for the strict civil and administrative liability of legal
entities for acts committed against national or foreign public administration.
Sole paragraph.
The provisions set forth in this Law shall apply to companies and general
partnerships, either incorporated or not, regardless of their business
organization or corporate model, as well as to foundations, associations of
entities or individuals, or foreign companies that have set up their main
office, a branch or representative office in the Brazilian territory, however
organized, even if on a temporary basis.
Article 2.
Legal entities shall be held strictly liable, in the administrative and civil spheres,
for any of the wrongful acts established in this Law performed in their interest
or for their benefit, exclusive or not.
Article 3.
The liability of legal entities does not exclude the individual liability of
their directors or officers, or any other individual who is the offender,
co-offender or participant of the wrongful act.
Paragraph 1.
Legal entities shall be held liable irrespective of the individual liability of
the individuals referred to in the head provision of this Article.
Paragraph 2.
The directors or officers shall be held liable for illegal acts solely to the
extent of their culpability.
Article 4.
The liability of legal entities remains in the event of amendments to their
articles of incorporation, corporate changes, mergers, acquisitions or
spin-offs.
Paragraph 1.
In the event of mergers and acquisitions, the liability of the successor shall
be restricted to the payment of applicable fines and to the full compensation
for occasional damages, within the limit of the transferred assets, not being
subject to the application of other sanctions provided for in this Law related
to acts and facts that occurred before the date of the said merger or
acquisition, except in case of simulation or evident fraud intention, which must
be duly proved.
Paragraph 2.
Parent, controlled or affiliated companies or consortium members, within the
scope of their respective consortium agreement, shall be held jointly liable
for the perpetration of acts provided for in this Law, being such liability restricted
to the payment of applicable fines and to the full compensation for occasional
damages.
CHAPTER II
WRONGFUL ACTS
AGAINST NATIONAL OR FOREIGN PUBLIC ADMINISTRATION BODIES
Article 5.
For the purposes of this Law, wrongful acts against national or foreign public
administration bodies are acts performed by the legal entities referred to in
the Sole paragraph of Article 1 to the detriment of national or foreign public
assets, of public administration principles, or to Brazil´s international
commitments, and are defined as follows:
I – to promise,
offer or give, directly or indirectly, an undue advantage to a public official
or to a third party related to him/her;
II – to demonstrably
finance, defray, sponsor or in any way subsidize the performance of the
wrongful acts established in this Law;
III – to
demonstrably make use of a third party, either an individual or a legal entity,
in order to conceal or dissimulate the entities´ actual interests or the
identity of those who benefited from the performed acts;
IV – with
respect to public bidding and government procurement:
a) to thwart or
defraud, through an adjustment, arrangement or any other means, the competitive
nature of public bidding processes;
b) to prevent,
disturb or defraud the execution of any act related to a public bidding process;
c) to remove or
try to remove a bidder by means of fraud or by the offering of any type of
advantage;
d) to defraud
public bidding processes or bidding-related contracts;
e) to create,
in a fraudulent or irregular manner, a legal entity with the purpose of participating
in a public bidding process or of entering into a contract with the public
administration;
f) to gain
undue advantage or benefit, in a fraudulent manner, from amendments or
extensions of contracts executed with the public administration without
authorization in the Law, in the notice of the public bidding or in the
respective contractual instruments; or
g) to
manipulate or defraud the economic and financial balance of the contracts
executed with the public administration;
V – to hinder
investigations or inspections carried out by public agencies, entities or
officials, or to interfere with their work, including the activities performed
by regulatory agencies and by inspection bodies of the national financial
system.
Paragraph 1.
Public agencies and entities, or diplomatic representations of a foreign
country, at any government level or scope, as well as legal entities directly
or indirectly controlled by the government of a foreign country are all considered
foreign public administration.
Paragraph 2.
For the purposes of this Law, international public organizations will be
considered equivalent to foreign public administration bodies.
Paragraph 3.
For the purposes of this Law, those who, even transitorily or without
compensation, hold a public position, job or office in government agencies and
entities, or in diplomatic representations of a foreign country, as well as in
legal entities directly or indirectly controlled by the government of a foreign
country, or in international public organizations, will be considered foreign
public agents.
CHAPTER III
ADMINISTRATIVE
LIABILITY
Article 6.
Within the administrative sphere, the sanctions listed below shall apply to
legal entities held liable for the wrongful acts provided for in this Law:
I – a fine in
the amount of 0.1% (zero point one percent) to 20% (twenty percent) of the
gross revenues earned during the fiscal year prior to the filing of
administrative proceedings, excluding taxes, which shall never be lower than
the obtained advantage, when it is possible to estimate it; and
II – extraordinary
publication of the condemnatory decision.
Paragraph 1.
The sanctions will be applied on a grounded manner on an isolated or cumulative
basis, according to the peculiarities of the concrete case and to the severity
and nature of the perpetrated offenses.
Paragraph 2.
The application of the sanctions set forth in this Article shall be preceded by
a legal opinion prepared by the Public Advocacy Office or the body of legal
assistance, or its equivalent, of the public entity.
Paragraph 3.
The application of the sanctions set forth in this Article does not exclude, in
any case, the obligation of full restitution for the damage caused.
Paragraph 4.
In the event of item I of the head provision, in case it is not possible to
adopt the criterion regarding the value of the legal entity’s gross earning,
the applicable fine will range from BRL 6,000.00 (six thousand Brazilian reais) to BRL 60,000,000.00 (sixty
million Brazilian reais).
Paragraph 5.
The extraordinary publication of the condemnatory decision will be made as a
summary of the decision at the legal entity’s expenses, through a means of
communication widely circulated in the area where the violation was committed and
the legal entity has business or, in its absence, in a nationally circulated
publication, as well as by fixing a public notice, for the minimum term of 30
days, at the establishment or at the place where the activity is conducted, in
a manner visible to the public, and at an electronic site in the world wide web.
Paragraph 6o
(VETOED).
Article 7.
In applying the sanctions, the following will be taken into consideration:
I – the
seriousness of the offense;
II – the
advantage obtained or intended by the offender;
III – whether
the offense was consummated or not;
IV – the degree
of damage or risk of damage;
V – the
negative effect produced by the offense;
VI – the
offender’s economic situation;
VII – the
cooperation of the legal entity to the investigations of the offenses;
VIII – the
existence of internal mechanisms and procedures of integrity, audit and
incentive for the reporting of irregularities, as well as the effective
enforcement of codes of ethics and of conduct within the scope of the legal
entity;
IX – the value of
the contracts held by the legal entity with the damaged public agency or entity;
and
X - (VETOED).
Sole paragraph.
The parameters of evaluation of the mechanisms and procedures provided for in
item VIII of the head provision shall be established in a regulation to be
issued by the Federal Executive Branch.
CHAPTER IV
ADMINISTRATIVE LIABILITY
PROCEEDINGS
Article 8.
The filing and decision of an administrative proceeding to determine the
liability of legal entities shall be carried out by the highest authority within
each agency or entity of the Executive, Legislative or Judicial Branches, which
shall act ex officio or upon request,
in compliance with the due process and full defense principles.
Paragraph 1.
The jurisdiction to initiate and decide on administrative proceedings to determine
the liability of legal entities may be delegated, while sub-delegation is
prohibited.
Paragraph 2.
Within the scope of the Federal Executive Branch, the Office of the Comptroller
General (CGU) has concurrent jurisdiction to commence administrative
proceedings to determine the liability of legal entities, or to arrogate the proceedings
initiated based on this Law, for the examination of their regularity or to
correct their progress.
Article 9.
The Office of the Comptroller General (CGU) is responsible for the investigation,
the proceeding of and the decision on the wrongful acts provided for in this
Law committed against the foreign public administration, subject to the
provision set forth in Article 4 of the Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions, enacted by
Decree N. 3,678, of November 30, 2000.
Article 10.
The administrative proceeding to determine the liability of legal entities will
be conducted by a committee appointed by the authority that initiated the
proceeding and will be formed by 2 (two) officials with more than 3 years in
office.
Paragraph 1.
At the request of the committee referred to in the head provision of this Article,
public entities may request, through their judicial representative body or
equivalent division the necessary judicial measures for the due investigation
and prosecution of the wrongdoing, including search and seizure procedures.
Paragraph 2.
The committee, in a precautionary manner, may suggest the authority that
initiated the proceeding to suspend the effects of acts or process that are the
subject of the investigation.
Paragraph 3.
The committee shall conclude the proceeding within 180 (one-hundred and eighty)
days as of the date of the publication of the act that creates the committee,
and shall present reports on the investigated facts and on the possible
liability of the legal entity, suggesting, in a motivated manner, the sanctions
to be applied.
Paragraph 4.
The term provided for in Paragraph 3 may be extended by means of a grounded
decision by the authority that initiated the case.
Article 11.
With respect to the administrative proceeding to determine the liability of the
legal entity, the legal entity will have a term of 30 (thirty) days to present
its defense, to be counted from the date of service.
Article 12.
The administrative proceeding, together with the committee’s report, will be
remitted for judgment to the authority that initiated the proceeding, pursuant
to Article ten.
Article 13.
The filing of a specific administrative proceeding for the full restitution of
damages does not affect the immediate application of the sanctions established
in this Law.
Sole paragraph.
Once the proceeding is concluded and no payment is made, the appraised credit
will be registered at the public treasury as an overdue tax liability.
Article 14. The
corporate personality may be disregarded whenever it is used with abuse of
right to ease, conceal or dissimulate the performance of the wrongful acts
provided for in this Law or to cause property confusion, and all effects of the
sanctions applicable to the legal entity shall be extended to its managers and
shareholders with management powers, in compliance with the due process and
full defense principles.
Article 15. After
the administrative proceeding is completed, the committee appointed to determine
the liability of the legal entity shall give notice of its existence to the
Public Prosecution Office in order for it to proceed with the investigation of
possible offenses.
CHAPTER V
LENIENCY
AGREEMENT
Article 16.
The highest authority of each public body or entity may enter into a leniency
agreements with the legal entity liable for the performance of the acts
provided for in this Law that effectively collaborate with the investigations
and with the administrative proceeding provided that such collaboration results
in:
I – the
identification of the ones involved in the offense, whenever applicable; and
II – rapidly
obtaining information and documents that prove the wrongful acts under
investigation.
Paragraph 1.
The agreement referred to in the head provision of this Article may only be
executed if the requirements listed below are fulfilled cumulatively:
I – the legal entity
is the first one to come forward and demonstrate its willingness to cooperate with
the investigation of the wrongful act;
II – the legal
entity completely ceases its involvement in the investigated offense as of the
date the agreement is proposed;
III – the legal
entity admits its participation in the wrongful act and fully and permanently
cooperates with the investigations and administrative proceedings, always
attending, at its expense and whenever requested, to all procedural acts until
the end of the case.
Paragraph 2.
The execution of the leniency agreement will exempt the legal entity from the
sanctions provided for in item II of Article 6 and in item IV of Article 19 and
will reduce the amount of the applicable fine by up to 2/3 (two-thirds).
Paragraph 3.
The leniency agreement does not exempt the legal entity from its obligation to
make full restitution for the damages caused.
Paragraph 4.
The leniency agreement will establish the necessary conditions to ensure the
effectiveness of legal entity´s collaboration and the useful result of the
proceeding.
Paragraph 5.
The effects of the leniency agreement will be extended to legal entities that
are part of the same economic group, in fact or by law, provided that they
jointly execute the agreement, respected the conditions therein established.
Paragraph 6. The
proposal of the leniency agreement will only become public after the execution
of the respective agreement, except if in the best interest of the
investigations and of the administrative proceeding.
Paragraph 7.
The denial of a proposed leniency agreement will not result in the confession
of the wrongful act under investigation.
Paragraph 8.
In the event of breach of the leniency agreement, the legal entity will be
prohibited from entering into a new agreement for 3 (three) years starting on
the date that the public administration becomes aware of the said breach.
Paragraph 9.
The execution of a leniency agreement interrupts the statute of limitation of
the wrongful acts provided for in this Law.
Paragraph 10.
The Office of the Comptroller General (CGU) is the competent authority to enter
into leniency agreements in the federal Executive Branch, as well as on cases
of wrongful acts committed against the foreign public administration.
Article 17.
The public administration may also enter into leniency agreements with legal
entities liable for illegal acts under Law n. 8,666, of June 21, 1993, in order
to exclude or mitigate the administrative sanctions established in articles 86
to 88.
CHAPTER VI
JUDICIAL
LIABILITY
Article 18.
The liability of the legal entity in the administrative sphere does not exclude
the possibility of its liability in the judicial sphere.
Article 19.
The Federal Government, the States, the Federal District and the Municipalities,
through their respective Public Advocacy Offices or legal representation
bodies, or their equivalent, and the Public Prosecution Office may file a
judicial action in relation to the wrongful acts set forth in Article 5 of this
Law, with a view to the application of the following sanctions to the
responsible legal entities:
I – loss of the
assets, rights or valuables representing the advantage or profit directly or
indirectly obtained from the wrongdoing, except for the right of the damaged
party or of third parties in good faith;
II – partial
suspension or interdiction of its activities;
III – compulsory
dissolution of the legal entity;
IV – prohibition
from receiving incentives, subsidies, grants, donations or loans from public
agencies or entities and from public financial institutions or
government-controlled entities from 1 (one) to 5 (five) years.
Paragraph 1.
The compulsory dissolution of the legal entity will be established when the
following is evidenced:
I – the
corporate personality was used on a regular basis to facilitate or promote the performance
of wrongful acts; or
II – the legal
entity was organized to conceal or dissimulate illegal interests or the
identity of the beneficiaries of the acts performed.
Paragraph 2.
(VETOED).
Paragraph 3.
Sanctions may be applied in an isolated or cumulative manner.
Paragraph 4.
The Public Prosecution Office or the judicial representative body of the public
entity, or their equivalent, may request the freezing of assets, rights or
values necessary to guarantee the payment of the fine or to ensure the full restitution
for the damages caused, as provided for in Article 7, except for the right of
third parties in good faith.
Article 20.
The sanctions set forth in Article 6 may be applied in the lawsuits files by
the Public Prosecution Office, without prejudice to the sanctions set forth in
this Chapter, provided that an omission of the competent authority to provide
the administrative liability is verified.
Article 21.
The procedures set forth in Law N. 7,347, of July 24, 1985, will be adopted as
the procedure for the judicial action.
Sole paragraph.
The condemning judgment shall render certain the obligation to fully repair the
damage caused by the wrongful act, which amount is to be determined in a
subsequent liquidation process, in case it is not expressly indicated in the
issued decision.
CHAPTER VII
FINAL
PROVISIONS
Article 22.
It is hereby created, in the sphere of the Federal Executive Branch, the
National Registry of Punished Companies (CNEP), which will consolidate the
sanctions applied based on this Law by agencies or entities from the Executive,
Legislative and Judicial Branches of all spheres of government.
Paragraph 1.
The agencies and entities referred to in the head provision of this Article
shall submit to the CNEP the data related to the applied sanctions and shall
keep such data updated.
Paragraph 2.
The CNEP shall record, inter alia,
the following information on the applied sanctions:
I – corporate
name and registration number of the legal person or entity in the Corporate
Taxpayer Registry (CNPJ);
II – type of
sanction; and
III – date of
application of the sanction and end date of the effects of the limiting or
impeditive sanctions, when appropriate.
Paragraph 3.
The authorities competent to execute the leniency agreements provided for in
this Law shall also inform and keep updated in the CNEP the information about
the signed leniency agreements, unless such practice affects the interest of
ongoing investigations and related administrative proceeding.
Paragraph 4.
In the event the legal entity does not comply with the conditions of the
leniency agreement, in addition to the information set forth in Paragraph 3,
reference to such default shall be included in the CNEP.
Paragraph 5.
Upon request of the agency or entity applying the sanctions, the records of the
sanctions and leniency agreements will be excluded after the end of the term
previously established in the sanctioning act or after full compliance with the
leniency agreement and restitution for the damage caused.
Article 23.
The agencies or entities of the Executive, Legislative and Judiciary Branches of
all spheres of the government shall inform and keep updated in the National
Registry of Inapt and Suspended Companies (CEIS), established in the sphere of the
federal Executive Branch, information related to the sanctions applied by them,
in accordance with articles 87 and 88 of Law 8.666 from 1993.
Article 24.
The fine and the loss of assets, rights or valuables applied based on the
provisions established in this Law will be allocated preferably to the public
bodies or entities damaged.
Article 25.
The wrongful acts set forth in this Law are time-barred in 5 (five) years, as
of the date of the awareness of the wrongdoing or, in case of permanent or
continued violation, as of the date in which it is ceased.
Sole paragraph.
The statute of limitation will be interrupted, in the administrative or
judicial sphere, by the commencement of the proceeding aimed at investigating
the wrongdoing.
Article 26.
The legal entity will be represented in the administrative proceeding in
accordance with its by-laws or articles of incorporation.
Paragraph 1. Companies
with no legal personality will be represented by the person responsible for the
management of their assets.
Paragraph 2.
Foreign legal entities will be represented by their managers, representatives
or officers responsible for administrating their branches, agencies or offices
operating or established in Brazil.
Article 27.
The competent authority that is aware of the wrongdoings provided for in this
Law and does not adopt measures for the investigation of the facts will be
subject to criminal, civil and administrative liability in accordance with
applicable laws.
Article 28.
This Law applies to wrongful acts committed by Brazilian legal entities against
foreign public administration, even if such acts were committed overseas.
Article 29.
The provisions set forth in this Law do not exclude the jurisdiction of the
Administrative Counsel of Economic Defense (CADE), the Ministry of Justice and
the Ministry of Finance to prosecute and render judgment on acts that violate
the economic order.
Article 30.
The application of the sanctions set forth in this Law does not affect the
processes of accountability and application of penalties arising out of:
I – an
improbity act, pursuant to Law N. 8,429, of 1992; and
II – wrongful
acts covered by Law N. 8,666, of June 21, 1993, or other rules regarding public
biddings and government procurement, including the Differentiated Regime of
Public Contracts (RDC), enacted by Law N. 12,462, of August 4, 2011.
Article 31. This Law comes into force 180 (one hundred and eighty)
days after the date of its publication.
Brasília, August 1st, 2013; 192nd year of
Independence and 125th of the Republic.
DILMA ROUSSEFF
José Eduardo Cardozo
Luís Inácio Lucena Adams
Jorge Hage Sobrinho
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