BRAZILIAN FEDERAL PROSECUTORS OFFICE (MPF) PUBLISHES ORIENTATION ON CIVIL NON-PERSECUTION AGREEMENT IN CASES OF ADMINISTRATIVE IMPROBITY

Last Tuesday (10/11), the Brazilian Federal Prosecutors Office’s5th Chamber of Coordination and Revision (5CCR) – focused on anti-corruption efforts –, published Orientation n. 10, which provides rules for individuals and legal entities entering into civil non-prosecution agreements (ANPC) for acts of administrative improbity set forth in the Federal Law No. 8,429 / 1992 (Administrative Improbity Law) and Federal Law No. 12,846/2013 (Anticorruption Law).

For entering into an ANPC, the interested party must confess the unlawful facts subject of the agreement, provide sufficient information and clarification requested by authorities, as well as cease the practice of the illegal acts. Among the obligations to cooperate with the investigation for improbity acts, the authorities may impose the presentation of evidence relating to the unlawful acts and the interested party’s commitment of abstaining of running for political offices or other positions on the public administration for up to eight years. In the case of legal entities, organizations must commit to implement or improve their compliance programs, among other obligations.

In exchange, the agreement may provide benefits such as the reduction of fines and exemption from penalties provided for in the Improbity and Anti-Corruption Laws, which does not mean any reduction in the reimbursement for damages caused to public treasury, neither exemption of the offender from losing assets, rights or values product of the illicit acts.

The execution of the ANPC depends on the consent by the public entity injured by the act of improbity, which must be consulted before its signature. Once signed, the agreement will be subject to the approval of the 5CCR or Justice, depending on the case, and its compliance will be monitored by the MPF. Failure to comply with its clauses will result in the loss of benefits granted and an immediate resumption of action or investigation.