Client Alerts 13/07/2022

New Regulatory Decree for the Brazilian Clean Companies Act

Decree No. 11,129 was published on July 12, 2022[1], and will become the new standard that regulates Law No. 12,846/2013 (“Clean Companies Act”), which provides for the administrative and civil liability of legal entities for the practice of acts against the public administration, national or foreign. The new regulation provides for already consolidated understandings and presents important updates regarding the provisions of Decree nº 8.420/2015[2], responsible for regulating the Clean Companies Act hitherto. Such alterations are originated from the experience accumulated by the Federal Executive Branch in the application of the Clean Companies Act over eight years of its validity and come at a critical moment, after seven years of its last regulation.

Among the consolidated matters, we highlight the provisions of (i) Administrative Liability and (ii) Leniency Agreement. As for Administrative Liability, Decree No. 11,129/2022 enshrines the understanding that the initiation of an Administrative Process of Accountability (PAR) must be preceded by a preliminary investigation to justify the accusation against a legal entity, and incorporates the proceedings of PAR already established by the Instruction Regulation No. 13/2019[3]. Regarding the Leniency Agreement, Decree No. 11,129/2022 clarifies that the agreements must be negotiated and entered into jointly between CGU and AGU – a practice consolidated in recent years, but which resolves outdated discussions on the competence of the MPF – in addition to providing for requirements for the admission of the Leniency Agreements and monitoring of its fulfillment, which were already being adopted as standard procedures by the competent authorities.

Regarding matters that underwent drastic changes, we highlight (iii) Administrative Fines and (v) Integrity Programs. Although Decree No. 11,129/2022 did not change the way of calculating the fine for the practice of acts against the public administration, significant changes were made to the dosimetry criteria, aggravating them in all cases. On the other hand, the benefits that can be obtained if the legal entity demonstrates that it has an effective Integrity Program have been increased. This placed even greater importance on the adoption of an effective Integrity Program, capable of preventing, detecting and remedying deviations, fraud, irregularities and illegal acts committed against the public administration, and of promoting and maintaining a culture of integrity in its organizational environment.

For this purpose, Decree No. 11.129/2022[4]:

a. Increased from 4 to 5% the percentage of fine reduction that can be granted if the legal entity demonstrates that it has an effective Integrity Program;

b. Highlighted that fostering and maintaining a culture of integrity in the organization is one of the objectives of the Program;

c. Improved the wording of the evaluation parameters, making them clearer and adapted to the evaluation methodologies already applied;

d. Reserved the regulation in connection with Micro and Small Enterprises for a later standard that shall be edited by the Comptroller General of the Union;

e. Reinforced the necessity, during leniency agreements, for the legal entity to commit to implementing or improving its Integrity Program;

f. Provided that the monitoring of the commitment to improve its Integrity Program may be waived, according to the specific case and depending on the remediation measures already adopted by the lenient legal entity; and

g. Expressly provided that the information related to the stages of the Integrity Program monitoring process will be published in active transparency on the Federal Comptroller General’s website.

Decree No. 11,129/2022 will be effective as of July 18, 2022

[1], access at July 13, 2022, 12:44 p.m. 

[2], access at July 13, 2022, 12:45 p.m. 

[3] , access at July 13, 2022, 12:46 p.m.

[4], access at July 13, 2022, 12:47 p.m. 

Authors: partner Bernardo Viana and trainee Matheus Leone.