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News - 24/08/20

Brazilian Regulators sign Technical Cooperation Agreement to strengthen the fight against corruption

On August 8th, a Technical Cooperation Agreement (TCA) was signed by the Brazilian Office of the Comptroller General, the Brazilian Federal Government Attorney-General Office,  the Brazilian Ministry of Justice and Public Safety and the Brazilian Federal Accounts Tribunal, regarding the fight against corruption, especially  in matters related to settlement agreements (“acordos de leniência”), as established in the Brazilian Anticorruption Law, Law nº 12.846/13. The Brazilian Federal Public Attorney´s Office, Ministério Público Federal (MPF), did not attend the ceremony that formalized the agreement and so far has not yet joined the TCA.

The agreement aims to improve the prevention and fight against corruption, especially in relation to settlement agreements (“acordos de leniência”), by creating a greater integration, cooperation, coordination and more effective and efficient communication among the signed members of the document.

Initially, the agreement mentions general principles that must be followed in anticorruption public policies and state actions against corruption, among which the interinstitutional articulation, the responsible and strategic action, and the transparency and constant interaction with society stand out. Many specific principles, that must be applied in the context of settlement agreements, are also recognized. In this category, the legal certainty, the search for consensus among the agreement´s signed parties regarding the establishment and eventual settlement for damages resulting from the facts covered by the agreement, and the collaboration of the company through its compliance program, are some of the principles that deserve notoriety.

In addition, the TCA discriminates systemic and operational actions that must be followed by the signatory public institutions. In general, these agreed guidelines seek to preserve, balance and guarantee sign parties powers and attributions, and create a culture that encourages the need for a joint and coordinated action to be taken by the institutions in order to obtain success when preventing and fighting corruption, while also providing greater legal certainty in the context of settlement agreements. There is, for example, guidance for the signed parties to seek to avoid double charges or payments, and to establishing tools for offsetting and/or abating fines/sanctions paid by companies responsible for conducts defined in more than one legislation.

The MPF expressed its contrary opinion regarding the agreement, claiming that the proposal would deflate its performance and does not contribute to legal certainty. Despite the symbolic importance of the TCA and the admirable intend of it seeking to improve the prevention and fight against corruption through greater interaction between the public entities responsible for this fight, there are still doubts as to its effectiveness and applicability, mainly due to the absence of MPF as signatory of the document.