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Practice note: Multiple guidance from Brazil for compliance programs

In a prior post earlier this year for the FCPA Blog, I talked about what Brazil is doing to clean up graft. This post continues that discussion, with a focus on official guidance from agencies and regulators about new anti-corruption laws and regulations and how to comply with them.

GGU’s Anti-bribery Compliance Guidance:

The Federal Comptroller’s Office (CGU) released a guide to assist companies to comply with the Clean Company Act and to implement anticorruption programs. The document provides practical examples of how to prevent corruption, including bribery of domestic or foreign public officials, fraud in bidding processes, and the conduct of investigations or inspections.

The Guide features five hallmarks of a compliance program: 1) tone at the top; 2) compliance officer; 3) risk assessment; 4) structuring of policies, procedures, and tools; 5) continuous monitoring. Despite having no normative character, the guidance sets forth government expectations (albeit in a broad way) of what the “integrity programs” should entail.

CADE’s Antitrust Compliance Guidelines:

The Administrative Council for Economic Defense (CADE) released a preliminary version of the Guidelines for Competition Compliance Programs (in English), establishing non-binding directives for companies as regard these programs, such as what they consist of, how they can be implemented, and what the benefits of their adoption are. The Guidelines present some brief explanations about the Law nº 12.529/2011 (Competition Act) and the new structure for the Brazilian Competition Protection System (BCPS), as well as what is competition compliance.

The document provides guidance for structuring robust programs, covering commitment, risk analysis, risk mitigation, revision of the program, and particularities of individuals cases, such as cartels, bid rigging, association, unilateral conduct, associative contracts and joint ventures, and mergers and acquisitions.

According to the Guidelines, there are four main aspects of competition compliance for companies in Brazil: the subscription to the leniency program, the signing of settlement agreements, the submission of consultations to the tribunal and the effects in sentencing. Finally, the document highlights the importance of integration of competition compliance with similar areas. CADE will receive comments and suggestions for the Guidelines until October 18.

Clean Company Act regulation for SMEs:

The Office of Small and Micro Enterprises and the CGU issued the Joint Regulation Nº 2279/2015, regulating anticorruption compliance programs for micro and small enterprises. The rules are simpler and with “less formal rigor,” and apply to companies that meet the requirements of Complementary Law No. 123/2006, which defines small and micro enterprises. The Regulation also provides explanations of the parameters provided in Decree No. 8420/15, which regulates the Clean Company Act, as well as examples of how to implement them.

CGU and APEX’s guidelines for relationship with foreign governments:

The Brazilian Trade and Investment Promotion Agency (APEX) and the CGU released the booklet Brazilian companies abroad – Relationship with Foreign Public Administration, seeking to clarify for exporting companies the main rules regarding the offering of improper advantage to foreign officials. The booklet also provides information about the FCPA and the UKBA, guidance on hospitality and gifts policies, and suggestions on specific rules and control instruments.

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Lucas Zanoni is an undergraduate student of law at University of São Paulo and a legal intern in the compliance and anti-bribery team of Chediak Advogados. The firm offers legal assistance for both Brazilian and international clients across different industries and business sectors.

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