The fight against corruption was highlighted in 2022, with the publication of relevant standards dedicated to the regulation of Law 12.846/13 (Anti-Corruption Law).

In July 2022, the federal government enacted the Decree 11,129/22, which revoked the old Decree 8,420/15 and significantly amended the regulation of the Anti-Corruption Law, drawing the attention of companies to the need to evaluate and improve compliance initiatives.

Also in July 2022, the Office of the Comptroller General (CGU) published the Normative Ordinance CGU 19/22, which established specific rules on early trial in the context of administrative accountability proceedings (PAR) established or called up by the CGU. In previous articles, we addressed what .

In addition to the two rules abovementioned, and shortly before the end of the year, on December 9, 2022, the CGU and the Attorney General’s Office (AGU) published the Interministerial Normative Ordinance CGU and AGU 36/22, which refers to the leniency agreement, specifically in relation to the criteria for the reduction of up to 2/3 of the amount of the applicable fine, as provided for in Section 16, §2 of the Anti-Corruption Law.

This ordinance is relevant because it is a regulation that lists objective, concrete, and minimally measurable criteria to limit the discretionary power of the authority in leniency agreement negotiations, allowing greater standardization in the guidelines and agreements.

In summary, the Interministerial Normative Ordinance CGU and AGU 36/22 indicates three criteria to be considered in reducing the fine: self-denunciation initiative, degree of collaboration and relevant conditions.

  1. Self-reporting initiative: assesses the timing of self-denunciation and the unprecedented nature of the information submitted by the legal entity on the harmful acts practiced. Thus, the lenient authority will observe whether there was a timely adoption of investigative measures and reporting to the CGU and the AGU, culminating in the presentation of information and documents in the context of the collaboration.

The specific deadline set for self-disclosure to be timely is up to nine months, from the acknowledgement of the harmful act by the legal entity until its formal communication of interest in entering into a leniency agreement. For cases where the legal entity is aware of the existence of harmful acts before the normative ordinance, the deadline for the timing of the self-disclosure will be six months, counted from December 9, 2022, date of publication of the normative ordinance.

As part of this criterion, the lenient authority will also evaluate the unprecedented nature  of the facts or information reported by the legal entity comparing them with those already acknowledged by the public authorities , the CGU or the AGU, even if they do not refer to new facts.

  1. Degree of collaboration: the authority will consider if the legal entity conducted internal investigation directed to gathering relevant information and documents, as well as evaluate the quantity, quality, scope, relevance and sufficiency of the information and documents delivered for the purpose of the leniency agreement.

In addition to the content, the second criterion also considers the form, that is, the authority will evaluate the speed in the treatment between the parties, whether the information provided is complete, in addition to the speed and accuracy of the reporting of harmful acts, highlighting as a criterion also the existence of responsibility by the legal entity and whether there was indication of the others involved.

It is worth noting that pursuant to Art. 16, I, of the Anti-Corruption Law, the indication of the others involved should be considered a criterion only when it fits. Depending on the specific case, there may not be other parties involved. Therefore, the authority should not consider the submission of other parties involved when it is not applicable in a specific case.

Furthermore, the authority will evaluate the promptness of the other actions necessary for the conclusion of the negotiation, such as timely translation of documents, availability for meetings, filling out requested documents, among other acts that are part of the negotiation itinerary.

  1. Relevant conditions: the authority will observe the parameters of the terms of payment of the financial commitments assumed by the legal entity in the agreement, considering the speed of the payment condition of the value of the leniency agreement and, in case of installment payment, the payment profile outlined by the installments. For payments lasting more than six months, the authority shall assess the guaranty provided for payment as part of the criterion.

The fine reduction may be less in cases where the legal entity has previously given up a proposal for a leniency agreement or a memorandum of understanding in previous negotiation stems from the same harmful acts.

The Interministerial Normative Ordinance CGU and AGU 36/22 does not apply to cases where there is already final report submitted for signature of leniency agreement. On the contrary, the ordinance applies to any legal entity that identifies internally an act harmful against the public administration, as well as legal entities that are in the process of negotiating a leniency agreement (before sending a final report for signature).

Normative can be an important instrument to bring some predictability and limitation in negotiations for both parties, but will depend on its application under the facts of the case.