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L12846

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Office of the President of the Republic Office of the Chief of Staff Deputy Chief for Legal Affairs LAW No. 12,846, OF AUGUST 1, 2013. Veto message

Effective Date

Provide for administrative and civil liability of legal persons for engaging in acts against the public administration, national or foreign, and provides other orders.

I, THE PRESIDENT OF THE REPUBLIC, Report that the National Congress orders and I approve the following Law: CHAPTER I GENERAL PROVISIONS Art. 1st. This Law provides for the strict administrative and civil liability of legal persons for engaging in acts against the public administration, national or foreign. Paragraph. The provisions hereof apply to business companies and professional companies, with personhood or not, regardless of the form of organization or the corporate model adopted, as well as any foundations, associations of entities or persons, or foreign companies, that are domiciled, and an affiliate or representation office in Brazilian territory, established in fact or of law, even temporarily. Art. 2nd. The legal persons shall be held strictly liable, administratively and civilly, for the injurious acts stipulated herein performed in their interest or benefit, exclusive or not. Art. 3rd. The liability of the legal person does not exclude the individual liability of its managers or administrators or of any natural person, perpetrator, co-perpetrator, or participant in the illegal act. ยง 1st. The legal person shall be held liable without prejudice to the individual liability of the natural persons cited in the caput. ยง 2nd. The managers or administrators shall only be held liable for illegal acts insofar as their culpability. Art. 4th. The liability of the legal person subsists in the case of a contractual change, transformation, incorporation, corporate merger or divestiture. ยง 1st. In cases of merger and incorporation, the liability of the successor shall be restricted to the obligation to pay a fine and full indemnification of the damage caused, up to the limit of the capital transferred, without the other penalties situated herein derived from acts or events occurring prior to the date of merger or incorporation being applicable to it, except in the case of misrepresentation or evident intention of fraud, duly proved. ยง 2nd. Controlling, controlled, related companies or, within the framework of the respective contract, consortium partners shall be jointly and severally liable for the performance of the acts stipulated herein, such liability being limited to the obligation to pay a fine and full indemnification of the damage caused. CHAPTER II

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ACTS HARMFUL TO THE NATIONAL OR FOREIGN PUBLIC ADMINISTRATION Art. 5th. For the purposes of this Law, acts harmful to the public administration, national or foreign, are those performed by the legal persons cited in the paragraph of Art. 1st, which violate the national or foreign public patrimony, principles of the public administration, or the international commitments assumed by Brazil, defined thus: I – to promote, offer, or give, directly or indirectly, an improper benefit to a public agent, or to a third person related to him; II – provably, to finance, bear the cost of, sponsor, or in any manner subsidize the performance of the illegal acts stipulated herein; III – provably, make us of a natural or legal third party to hide or cover up the real interests or the identities of the beneficiaries of the acts performed; IV – insofar as requests for bids and contracts: a) to hinder or defraud, through collusion, agreement, or any other method, the competitive nature of a public request for bid procedure; b) to prevent, disturb, or defraud the performance of any act in a public request for bid procedure; c) to remove or to try to remove a bidder, through fraud or the offering of any benefit of any type; d) to defraud a public request for bid or contract derived therefrom; e) to create, fraudulently or improperly, a legal person to participate in a public request for bid or enter into an administrative contract; f) to obtain an improper advantage or benefit, fraudulently, for modifications or extensions in contracts entered into with the public administration, not authorized by law, the invitation to the public request for bid, or the respective contractual instruments; or g) to manipulate or defraud the economic and financial balance of contracts entered into with the public administration; V – to hinder the investigation or supervisory work of public bodies, entities, or agents, or to intervene in their actions, including within the framework of regulatory agencies and supervisory bodies of the national financial system. § 1st. The state bodies or diplomatic representation offices of a foreign country, of any level or sphere of government, as well as legal persons controlled directly or indirectly by a public authority of a foreign government, are deemed foreign public administrations. § 2nd. For the effects of this Law, foreign public administrations are the same as international public organizations. § 3rd. For the purposes of this Law, anyone, even temporarily or without compensation, who holds a position, job, or public function in state bodies, entities, or in diplomatic representation offices of a foreign country, as well as legal persons controlled directly or indirectly by a public authority of a foreign country or in international public organizations, are deemed foreign public agents.

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CHAPTER III ADMINISTRATIVE LIABILITY Art. 6th. Administratively, the following penalties shall be applied to legal persons deemed liable for the harmful acts stipulated in this Law: I – a fine, in the amount of 0.1% (zero point one percent) to 20% (twenty percent) of the gross billings of the fiscal year prior to the institution of the administrative proceeding, excluding taxes, which shall never be less than the benefit gained, if it is possible to estimate it; and II – extraordinary publication of the adverse judgment. § 1st. The penalties shall be applied with reasoning, in isolation or cumulatively, according to the peculiarities of the specific case and the seriousness and nature of the violations. § 2nd. The application of the penalties stipulated in this article shall be preceded by a legal statement prepared by the State Attorney’s Office or by the legal representation agency, or equivalent, of the public institution. § 3rd. The application of the penalties stipulated in this article does not exclude, in any case, the obligation to fully indemnify the damage caused. § 4th. In the case of part I of the caput, if it is not possible to use the criterion of the amount of gross billings of the legal person, the fine shall be from R$ 6,000.00 (six thousand reais) to R$ 60,00,000.00 (sixty million reais). § 5th. The extraordinary publication of the adverse judgment shall occur in the form of a summary of the judgment, at the expense of the legal person, in the wide-circulation press in the area where the violation was committed and the legal person operates or, in the absence thereof, in a national-circulation publication, as well as by affixing a notice, for a minimum period of 30 (thirty) days, in the establishment itself or the place where it does business, visible to the public, and on the website. § 6th (VETOED). Art. 7th. The following shall be taken into account in the application of the penalties: I – the seriousness of the violation; II – the benefit gained or sought by the violator; III – the consummation or not of the violation; IV – the degree of injury or danger of injury; V – the negative effect caused by the violation; VI – the financial position of violator; VII – the cooperation of the legal person in the determination of the violations; VIII – the existence of internal mechanisms and procedures for integrity, audit, and incentives to report irregularities and the effective application of codes of ethics and conduct within the framework of the legal person;

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IX – the amount of the contracts maintained by the legal person with the injured public body or entity; and X – (VETOED). Paragraph. The parameters for evaluating the mechanisms and procedures stipulated in part VIII of the caput shall be established in a regulation by the federal Executive Branch. CHAPTER IV THE ADMINISTRATIVE PROCEEDING FOR LIABILITY Art. 8th. The institution and judgment of an administrative proceeding to ascertain the liability of a legal person appertains to the supreme authority of each body or entity of the Executive, Legislative, and Judicial Branches, which shall act motu proprio or upon request, retaining the right of confrontation and due process. § 1st. Authority to institute and try an administrative proceeding to determine the liability of the legal person may be delegated, but sub-delegation is prohibited. § 2nd. Within the framework of the federal Executive, the Office of the Comptroller General of the Union (CGU) shall have concurrent authority to institute administrative proceedings for liability of legal persons or to assume cognizance of proceedings instituted based on this Law, to examine their propriety or to correct their prosecution. Art. 9th. The Comptroller General of the Union (CGU) is responsible for determining, prosecuting, and judging the illegal acts stipulated in this Law, performed against a foreign public administration, pursuant to the provisions of Article 4 of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, promulgated by Decree No. 3678, of November 30, 2000. Art. 10. The administrative proceeding for determining the liability of a legal person shall be conducted by a committee designated by the instituting authority and comprised of 2 (two) or more permanent civil servants. § 1st. The public institution, through its legal representation office or equivalent, at the request of the committee cited in the caput, may request the judicial measures necessary for the investigation and the prosecution of violations, including search and seizure. § 2nd. The committee may, as a precaution, propose that the instituting authority stay the effects of the act or proceeding subject to investigation. § 3rd. The committee shall complete the proceeding within a period of 180 (one hundred and eighty) days computed from the date of publication of the act that institutes it and, at the end, submit reports on the facts determined and the eventual liability of the legal person, suggesting with reasoning the penalties to be applied. § 4th. The time frame stipulated in § 3rd may be extended, through a reasoned act by the instituting authority. Art. 11. In an administrative proceeding to determine liability, the legal person shall be granted a period of 30 (thirty) days for a defense, computed from service. Art. 12. The administrative proceeding, with the report by the committee, shall be sent to the instituting authority pursuant to Art. 10, for a judgment. Art. 13. The institution of a specific administrative proceeding for full indemnification of the damage does not prejudice the immediate application of the penalties established in this Law.

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Paragraph. Once the proceeding is over and if payment is not made, the debt shall be recorded among the public treasury’s receivables. Art. 14. Legal personhood may be disregarded provided that it is used as an abuse of the law to aid, cover up, or hide the performance of the illegal acts stipulated herein, or to confuse assets, all of the effects of the penalties applied to the legal person being applied to its administrators and members with administrative powers, retaining the right of confrontation and due process. Art. 15. The committee appointed to determine the liability of the legal person, after the completion of the administrative proceeding, shall advise the Public Ministry of the existence thereof, to determine possible crimes. CHAPTER V LENIENCY AGREEMENT Art. 16. The supreme authority of each public body or entity may enter into a leniency agreement with the legal persons responsible for committing the acts stipulated in this Law who effectively collaborate with the investigations and the administrative proceeding, where the following results from this collaboration: I – the identification of the others involved in the violation, when applicable; and II – prompt obtainment of information and documents that prove the illegal act under investigation. § 1st. The agreement cited in the caput may only be entered into of the following requirements are met, cumulatively: I – the legal person is the first to state its interest in cooperating with the investigation of the illegal act; II – the legal persons completely ceases its involvement in the violation investigated from the date the agreement is proposed; III – the legal person admits its participation in the illegal act and cooperates fully and permanently with the investigations and the administrative proceeding, appearing, at its expense, whenever requested, in all procedural acts, through their completion. § 2nd. The formalization of the leniency agreement shall exempt the legal person from the penalties stipulated in part II of Art. 6th and in part IV of Art. 19 and it shall reduce by up to 2/3 (two-thirds) the amount of the applicable fine. § 3rd. The leniency agreement does not exempt the legal person from the obligation to cure in full the damage caused. § 4th. The leniency agreement shall stipulate the conditions necessary to safeguard the effectiveness of the collaboration and the useful outcome of the proceeding. § 5th. The effects of the leniency agreement shall be extended to such legal persons as form part of the same economic group, in fact or of law, provided that they sign the agreement jointly, respecting the conditions therein established. § 6th. The proposed leniency agreement shall only be made public after the respective agreement is effective, except in the interest of the investigations and the administrative proceeding.

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§ 7th. The proposal of a rejected leniency agreement shall not lead to recognition of the practice of the illegal act investigated. § 8th. In case of noncompliance with the leniency agreement, the legal person shall be prevented from entering into a new agreement for a period of 3 (three) years computed from cognizance by the public administration of the aforementioned violation. § 9th. The formalization of the leniency agreement tolls the statute of limitations for the illegal acts stipulated herein. § 10th. The Office of the Comptroller General of the Union (CGU) is the body with competent jurisdiction to enter into leniency agreements under the scope of the federal Executive Branch, as well as in the case of injurious acts committed against a foreign public administration. Art. 17. The public administration may also enter into a leniency agreement with the legal person responsible for committing the illegal acts stipulated in Law No. 8,666, of June 21, 1993, with a view toward an exemption from or attenuation of the administrative penalties stipulated in its Arts. 86 to 88. CHAPTER VI JUDICIAL LIABILITY Art. 18. In the administrative sphere, the liability of the legal person does not remove the possibility of its liability in the judicial sphere. Art. 19. By reason of the commission of acts stipulated in Art. 5th of this Law, the Union, the States, the Federal District, and the Municipalities, through their respective State Attorney’s Office or legal representation agency, or equivalent, and the Public Ministry, may try actions with a view toward the application of the following penalties against the violating legal persons: I – loss of assets, rights, or amounts that represent a benefit or profit directly or indirectly obtained from the violation, without prejudice to the rights of the injured or good-faith third party; II – suspension or partial prohibition on its operations; III – compulsory dissolution of the legal person; IV – prohibition against receiving incentives, subsidies, subventions, donations, or loans from public bodies or entities and public financial institutions or those controlled by the public authorities, for a minimum period of 1 (one) year and a maximum of 5 (five) years. § 1st. The compulsory dissolution of the legal person shall be ordered when the following is proved: I – the legal personhood was habitually used to facilitate or promote the performance of illegal acts; or II – it was established to cover up or hide illegal interests or the identity of the beneficiaries of the acts committed. § 2nd. (VETOED). § 3rd. The penalties may be applied in isolation or cumulatively.

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§ 4th. The Public Ministry or the State Attorney’s Office or legal representation agency, or equivalent, of the public entity may request the freezing of assets, rights, or amounts necessary to ensure payment of the fine or full indemnification of the damage caused, as stipulated in Art. 7th, without prejudice to the rights of good-faith third parties. Art. 20. The penalties stipulated in Art. 6th may be applied in the actions prosecuted by the Public Ministry, without prejudice to those stipulated in this Chapter, provided that the failure of the competent authorities to seek administrative liability is proved. Art. 21. The procedure stipulated in Law No. 7,347, of July 24, 1985, shall be adopted in actions for judicial liability. Paragraph. An adverse judgment creates the obligation to cure in full the damage caused by the illegal act, whose amount shall be determined in a subsequent inquest, if not expressly contained in the judgment. CHAPTER VII FINAL PROVISIONS Art. 22. The National Registry of Punished Companies (CNEP) is created within the framework of the federal Executive Branch, which shall collect and publicize the penalties applied by the bodies or entities of the Executive, Legislative, and Judicial Branches of all spheres of government based on this Law. § 1st. The bodies and entities cited in the caput shall report and keep up to date, in the CNEP, the data related to the penalties applied by them. § 2nd. CNEP shall have, among other information, the following regarding the penalties applied: I – company name and registration number of the legal person or entity in the National Registry of Legal Persons (CNPJ); II – type of penalty; and III – date of application and end date of the effective period of the restrictive or deterrent effect of the penalty, when applicable. § 3rd. To enter into the leniency agreements stipulated herein, the competent authorities shall also provide and keep up to date in the CNEP, after the respective agreement takes effect, the information on the leniency agreement entered into, except if that procedure might harm the investigations and the administrative proceeding. § 4th. If the legal person does not comply with the terms of the leniency agreement, beyond the information stipulated in § 3rd, a reference to the respective violation shall be included in the CNEP. § 5th. The records of the penalties and leniency agreements shall be eliminated once the time frame previously established in the judgment or has lapsed or upon full completion of the leniency agreement and the cure of any damage caused, upon request by the penalizing body or entity. Art. 23. The bodies or entities of the Executive, Legislative, and Judicial Branches of all spheres of government shall report and keep up to date, for publication purposes, in the National Registry of Suitable and Suspended Companies (CEIS), instituted within the framework of the federal Executive Branch, the information related to the penalties applied by them, under the terms of the provisions of Arts. 87 and 88 of Law No. 8,666, of June 21, 1993.

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Art. 24. The fine and the loss of property, rights, and amounts applied based hereupon shall be allocated preferentially to the injured public bodies or entities. Art. 25. The statute of limitations for the violations stipulated herein is 5 (five) years, computed from the date the violation becomes known, or, in the case of a permanent or ongoing violation, from the date that it ended. Paragraph. Within the administrative or judicial sphere, the statute of limitations shall be tolled upon institution of the proceeding whose objective is the ascertainment of the violation. Art. 26. The legal person shall be represented in the administrative proceeding in accordance with its bylaws or articles of incorporation. § 1st. Companies without legal personhood shall be represented by the person responsible for the administration of their assets. Art. 27. A competent authority who, being aware of the violations stipulated herein, does not take the steps to ascertain the facts shall be held criminally, civilly, and administratively liable under the terms of the specific applicable law. Art. 28. This Law is applied to injurious acts performed by a Brazilian legal person against a foreign public administration, even if committed abroad. Art. 29. The provisions hereof do not exclude the authorities of the Administrative Council for Economic Defense, the Ministry of Justice, and the Ministry of the Treasury to prosecute and try an act that constitutes a violation of the economic system. Art. 30. The application of the penalties stipulated herein does not affect the actions for liability and application of penalties derived from: I – an act of administrative improbity under the terms of Law No. 8,429, of June 2, 1992; and II – illegal acts covered by law No. 8,666, of June 21, 1993, or other rules for public requests for bids and contracts with the public administration, including insofar as the Differentiated Public Contracting Regime (RDC), instituted by Law No. 12,462, of August 4, 2011. Art. 31. This Law takes effect 180 (one hundred and eighty) days after the date of its publication. Brasília, August 1, 2013; 192nd of Independence and 125th of the Republic. DILMA ROUSSEFF José Eduardo Cardozo Luís Inácio Lucena Adams Jorge Hage Sobrinho This text does not replace the text published in the Official Register of the Union on 8.2.2013

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