Normative instruction n. 2/2018

On May 21, 2018, the Ministry of Transparency and General Comptroller Office (CGU) published the Normative Instruction n. 2/2018 which regulates the methodology for calculating administrative fines imposed by the agency on leniency agreements entered into with companies under the Brazilian Clean Companies Act (Act n. 12.846/2013 or “BCCA”).

The rule was issued in association with the Federal Attorney’s Office (AGU), unveiling another step in the process of approximation and alignment of the agencies in the handling of leniency agreements related to corruption issues.

It is worth remembering that on December 15, 2016, the CGU and the AGU had already issued the Interministerial Ordinance n. 2.278/2016, which defines parameters for the conclusion of leniency agreements and, recently, jointly with the Federal Prosecution Office (MPF) and the Federal Audit Court (TCU), signed the first leniency agreement of the country with the consent of the four agencies regarding the amount of the fine agreed with lenient companies^[1].

According to the CGU, the purpose of the new Normative Instruction is “to standardize the procedures followed by the commissions of leniency agreements’ negotiation, formed by members of the CGU and the AGU, as well as to ensure greater transparency to the method of applying the fine for illicit acts, in accordance to the aggravating and attenuating criteria established in Decree n. 8.420/2015” ^[2]. The enforcement of the rule will only apply to illicit acts practiced after the entry into force of the BCCA, which occurred on January 29, 2014.

The rule is structured in two introductory sections and two annexes that effectively regulate the calculation of the fine.

Annex I sets forth the basic concepts of the rule and the roadmap for the calculation of the fine. Section 8 of the same annex defines eight basic parameters for the calculation of the fine, some of them considered new in relation to Decree n. 8.420 / 2015:

I. the amount of the bribe paid;
II. the total amount of all contracts or similar instruments in the recognized period, including amendments (sum of the total amount of contracts or instruments in the analyzed period);
III. the existing contractual balance of the contaminated instruments as of the effective date of the BCCA (sum of residual balances of contracts or contaminated instruments – as of January 29, 2014) and;
IV. enforcement of other fines by the Public Administration in the face of the same facts.

Annex II, in turn, sets forth a table with a roadmap for the calculation of the fine, from the basic parameters, aggravating and attenuating circumstances to provisions set forth in Decree n. 8.420/2015 on the calculation of the fine in cases in which the general criteria is not applicable.

The Normative Instruction comes up as another element of the already extensive Brazilian legal framework on anti-corruption issues, which has been gaining ground since the BCCA was enacted in 2013. It is expected that the new rule will be observed by the Brazilian law enforcement authorities and fulfill its purpose of objectively standardizing administrative fines in leniency agreements.

CONTACTS:
Juliana Miranda
Partner of Compliance
T: +55 11 3077-3534
E: juliana.miranda@cmalaw.com

 Ricardo Caiado
Associate of compliance
T: +55 11 3077-3591
E: ricardo.caiado@cmalaw.com

[1] http://www.cgu.gov.br/noticias/2018/04/cgu-e-agu-assinam-acordo-de-leniencia-com-as-agencias-mullenlowe-e-fcb-brasil

[2] http://www.cgu.gov.br/noticias/2018/05/cgu-publica-metodologia-de-calculo-da-multa-aplicada-nos-acordos-de-leniencia