Brazil: AGU Regulates Civil Non-Prosecution Agreement In Administrative Improbity Cases

On July 19, 2021, the Brazilian Federal Attorney General's Office ("AGU") published Normative Order No. 18 ("Normative Order"), which regulates the civil non-prosecution agreement ("ANPC") in administrative improbity matters within the scope of the authority of the AGU and the Federal Public Attorney's Office ("PGF"). The regulation will come into force on August 1, 2021

As provided for in the Normative Order, the ANPC—inserted in article 17, paragraph 1, of Law No. 8,429/1992 ("Administrative Improbity Law") by Law No. 13,964/2019 ("Anti-Crime Law")—has a punitive and reparatory nature and may be entered into out-of-court or during a lawsuit when a consensual solution is the most feasible measure to accelerate the return of misappropriated amounts. The ANPC may cover all acts defined as administrative improbity and may be entered into both by the individuals and the legal entities who commit any of the acts provided for in the law.

Article 4 of the Normative Order establishes that a proposed ANPC must be forwarded to the Department of Public Assets and Probity of the PGF for joint evaluation with the Board of Leniency Agreements of the Anti-Corruption Secretariat of the Office of the Comptroller General ("CGU") if these three conditions exist: (i) the facts covered in the proposed ANPC are also defined and punishable under Law No. 12,846/2013 ("Anti-Corruption Law"), (ii) elements of the ANPC indicate the possibility of entering into a leniency agreement and (iii) the initiative for negotiation was taken by the people involved in the facts. This provision establishes a consolidated cooperative relationship between the AGU and the CGU in this anti-corruption microsystem. 

The necessary requirements for the execution of the ANPC include (i) the admission of participation in the unlawful acts; (ii) if the unlawful act is ongoing, the termination of the conduct; (iii) the repair of the damage to the public treasury, when applicable; (iv) the full restitution of the proceeds of unlawful enrichment; (v) broad collaboration—with the identification of other agents involved, location of assets and asset values—and production of evidence; and (vi) submission to at least one of the sanctions provided for in article 12 of the Administrative Improbity Law (the payment of a civil fine; the commitment not to contract with the government or receive tax or credit benefits and incentives, even if through a legal entity of which he or she is a majority shareholder; removal from office, employment and/or public function upon request and/or the commitment not to take up employment and/or public function; and resignation from the elective office he or she holds, as well as the commitment not to run again for elective public positions).

The Normative Order also establishes that the ANPC entered into with the AGU will only become public after it is concluded, except when making it public is in the interest of investigations and the administrative proceeding or if the interested parties authorize the disclosure of the proposal for the ANPC  and the progress of negotiations.

Because the application of the Administrative Improbity Law is decentralized, lawsuits based on this law can be filed by several agencies at both the federal and state levels; each agency is responsible for regulating the procedures for the signing of civil non-prosecution agreement in its sphere. Thus, it should be noted that, in addition to the AGU, the Federal Public Prosecutor's Office ("MPF") has already regulated the ANPC in its sphere through Guideline No. 10, published in November 2020. 
The regulation of the ANPC by the AGU reinforces the importance of using a settlement—recognized in 2019 by the Anti-Crime Law as a tool for addressing administrative improbity matters—to quickly and consensually resolve conflicts while avoiding litigation.

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