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CGU publishes a Practical Guide for Calculation of Fines Established in the Anticorruption Law

Administrative Law; Compliance and Corporate ethics

On December 26, 2018, the Office of the Federal Comptroller General ("CGU") released a Practical Guide of Calculation of Fines, establishing guidance to Commissions responsible for Administrative Enforcement Proceedings (in Portuguese, Comissões de Processo Administrativo de Responsabilização or CPAR) within the Federal Executive Branch to calculate the fine contemplated by Law No. 12,846/2013 (the Anticorruption Law).

The Practical Guide contains several recommendations. In particular, it contemplates levels for the revenue percentages indicated in Articles 17 and 18 of Decree No. 8,420/2015 (the Anticorruption Decree), which regulates the Anticorruption Law, as summarized below. 

Please click here to read a summary of CGU's manual

In addition to the percentage levels, the CGU expressed an important view regarding the 1% reduction of the fine in case a violation is not consummated, as provided in item I of Article 18 of the Anticorruption Decree. 

According to the Practical Guide, non-consummation would not be a mitigating factor, but an exemption of liability. The Practical Guide concludes that, "As it seems, the legislator intended to provide a mitigating factor in case the legal entity does not achieve the expected result by means of the harmful act". However, because the wording of the law states "no consummation of a violation", the fine will be applied irrespective of whether or not the legal entity has achieved the desired result. In this regard, the mere offer of undue advantage amounts in and of itself to a violation.

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