Decree No. 11,129/22, which has entered into force today, amends the anti-corruption regulations in Brazil setting new criteria for the use of leniency agreements and enhancing the procedures related to the preliminary investigation and the Administrative Liability Proceeding.
Decree No. 11,129/22 published by the Brazilian Federal Government enters into force today. It regulates Law No. 12,846 of August 1, 2013 ("Anti-Corruption Law") revoking the previous Decree No. 8,420 of March 18, 2015 and amending the regulations on the anti-corruption legislation.
Among other things, the Decree regulates the negotiation, execution, and fulfillment of leniency agreements, ensuring greater legal certainty, predictability, and attractiveness of such institutes for the legal entities. The Brazilian Anticorruption Law (BAC) states that a leniency agreement may be entered into by the Office of Comptroller-General (CGU) and an investigated legal entity that was involved in illicit acts and has effectively cooperated with the investigations and with the administrative proceedings.
Under the Decree the main purposes of leniency agreements are now (a) to increase the investigative capacity of the public administration; (b) to enhance the authorities’ capacity to recover assets; and (c) to promote an integrity culture of integrity in the private sector. The Decree also includes two new requirements for the execution of leniency agreements: (a) full compensation of the uncontroversial amount of the damage and (b) loss, in favor of the damaged entity or the Federal Union, of the amounts corresponding to the undue asset increase or illicit enrichment obtained with the violation.
Inter alia and apart from the leniency agreements, the Decree improves the procedures related to the preliminary investigation and the Administrative Liability Proceeding, it sets new criteria for determining the applicable penalty for unlawful acts, it increases from 4% to 5% of the reduction percentage of the penalty, in case the legal entity proves that an effective integrity program was in place at the time of the Anti-Corruption Law violation, it better defines the concept of "obtained or intended advantage", which now corresponds to the monetary equivalent of the product of the illicit act, i.e., the earnings or profits obtained or intended by the legal entity as a direct or indirect result of the harmful act.
Access Decree No. 11,129/22 published by the Brazilian Federal Government