New normative from CGU changes the guidelines for Administrative Liability Proceedings

17/02/2023

In short

On February 14, the Office of the Comptroller General (CGU) published the Normative Ordinance No. 54, which establishes new guidelines about the steps of the Administrative Liability Proceedings (PARs), preliminary investigations and judgments-in-advance, defining attributions to the new Secretary of Private Integrity. Also, new requirements were inserted for the rehabilitation of companies punished under the Anti-Corruption Law.

The new Normative Ordinance changes the following regulations published by the General Comptroller’s Office:

Main conclusions

Liability of Legal Entities

The competence to initiate Preliminary Investigations (IPs) and Administrative Liability Proceedings (PARs) is leading now by the Secretary of Private Integrity, instead of the Internal Affairs Office. The Secretary of Private Integrity will also have the prerogative to close a complaint that is groundless or not supported by enough evidence of authorship and materiality.
The Secretary for Private Integrity will also be in charge of acts related to the negotiation, execution and monitoring of leniency agreements, instead of the Secretary of Combat Against Corruption.
In case of Preliminary Summary Investigations (IPSs) that may occur within the scope of CGU, their filing are decided by the Director of Liability of Public Agents of the Internal Affairs Office and of the Director of Liability of Private Entities of the Secretary of Private Integrity.

Procedures and requirements for the rehabilitation of punished legal entities

Legal entities must effectively demonstrate that they improved the flaws that determined their punishment. Among these measures, they must demonstrate the implementation and effective application of the compliance program pursuant to Decree No. 11,129 of July 11, 2022.

The request for rehabilitation should be directed to the Secretary of Private Integrity, and no longer to the Internal Affairs Office. The Secretary may request information from the damaged entities and competent public bodies and will carry out the evaluation of the compliance program implemented by the interested party.
After the instruction, the Secretary of Private Integrity will prepare an document with its technical analysis and conclusions, submitting it to the CGU Legal Consultancy for a legal opinion. After this procedure, the case files should be sent to the Minister of State of the General Comptroller’s Office for a final decision.

Request for early judgment and mitigating factors in the fine calculation

The request for a judgment-in-advance should be submitted for evaluation to the Secretary of Private Integrity, and no longer to the Internal Affairs Office.
The limits for percentage of reduction of a few mitigating factors in the calculation of fines were also changed for different moments of the procedure:

Before the establishment of the Administrative Accountability Procedure

1.5% in case of collaboration from the legal entity with the investigation of the harmful act.
2% in case of voluntary admission by the legal entity responsible for the harmful act.

Before the deadline for submitting the writing defense

1.5% in case of voluntary admission by the legal entity responsible for the harmful act.

Before the deadline for submitting final allegations

1% in case of collaboration from the legal entity with the investigation of the harmful act.
1% in case of voluntary admission by the legal entity responsible for the harmful act..

After the deadline for submitting final allegations

0,5% in case of collaboration from the legal entity with the investigation of the harmful act.
0,5% in case of voluntary admission by the legal entity responsible for the harmful act.

Further details

The Secretary of Private Integrity is a new structure created to provide a team specialized in promoting integrity in the private sector, holding the steps related to the compliance of anti-corruption rules for private legal entities and dissemination of corporate integrity.
The creation of a specialized Secretary to deal with the integrity of the private sector is an important step towards the efficiency of the law enforcement, assisting the Office of General Comptroller to conduct more agile investigations that facilitate the recovery of resources by the harmful act and the liability of companies.

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