The Anti-Corruption Law, which was approved in August 2013 and became effective at the end of January 2014, brought about significant changes regarding the relationship between private businesses and government employees. This article does not intend to conduct a detailed analysis of the new Law 12846/2013, as this has been done repeatedly, but to focus on the practical consequences this law will have on business activities. We are very possibly witnessing not only a new legislative framework, but also a milestone in terms of culture and the behavior of the Brazilian business segment, which justifies all the attention this issue has been garnering.
The Brazilian business environment is undoubtedly unique, with very creative means being used by the most diverse business segments to close deals. This is one of the reasons why the Brazilian culture is internationally recognized, for better or for worse, by its "jeitinho brasileiro", i.e., the Brazilian way of doing things. On the one hand, many executives climb to top positions in large multinational companies (including abroad) due to their skill in finding innovating solutions within the law for the challenges faced daily by businesses everywhere. On the other hand, our professionals are also the focus of attention when it comes to corruption.
The new law does not provide for the minutiae of the relationship between the private and the public sectors, nor does it distinguish clearly between allowed and forbidden attitudes, leaving some doubt as to those attitudes situated in the "gray area" between legal and illegal. The federal and state regulations, most of which are yet to come, will probably not offer the clarification needed on this issue, as seen in the states of Tocantins and São Paulo, which already have their respective Decrees. The analysis of each case based on moral, ethical and legal principles, as well as on the precedents to come, will likely offer private entrepreneurs the necessary basis on which to make decisions and determine their employees' performance parameters.
Many companies, particularly large multinationals, already have Compliance Policies in place due to foreign laws (such as the FCPA in the US and the Bribery Act in England), and in several cases choose to absolutely forbid any expenditures, however insignificant, related to relationships with government authorities. This is, without a doubt, the most cautious approach to avoid any future problems. Yet, each company incorporated in Brazil is responsible for guiding its employees on this matter, as well as teaching them to behave appropriately toward government employees. The effective implementation of a compliance policy will also serve to reduce penalties in case an employee behaves badly toward a government authority.
It is worth pointing out that, under the Anti-Corruption Law, the companies are fully responsible for the acts performed by all their employees. In other words, for a company to be penalized by an illegal act, it will not be necessary to show that the employee performed this act guided by his/her superior, nor will any justification that the employee acted "on his/her own account" have any effect. In summary, the mere offer of an unfair advantage to a government employee will be enough to penalize the company.
It is also worth noting that the penalty applied to the company will range from 0.1% to 20% of its gross sales recorded in the year before the administrative proceeding is filed (or from R$ 6,000.00 to R$ 60,000.000.00, in case the criterion above cannot be adopted), which will evidently have a significant financial impact on any company. Other penalties, such as the publication of the award in the National Register of Punished Companies (CNEP) and even the mandatory dissolution of the corporation (the so-called "death penalty for corporations"), can also serve as a warning to businesses, driving them to implement truly effective internal policies.
The main conclusion to be drawn from all this, especially during the period of adaptation of Brazilian companies to the new Anti-Corruption Law, is the need to implement a Compliance Policy that allows the company to carefully assess each attitude associated with contacts between representatives of private companies and government authorities. Several measures should be taken in that regard (for instance, preparation/review of Codes of Ethics and Conduct, creation of channels for reporting suspected irregularities, recurring training sessions on the applicable laws and the company's good practices, periodic audits, etc.), given that the more effective the Compliance Policy, the smaller the risks.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.