Brazil published its Anti-Corruption Law - Law 12. 846, on August 1, 2013, whereby companies were committed to administrative and civil liability, with regard specifically to acts related to corruption, fraud in tenders and creating impeding circumstances for investigation or inspection. Unfortunately, the Brazilian legislator missed a great opportunity to criminalize companies’ operation and conduct, as is already the case in some countries.
On the other hand, the Anti-Corruption Law has brought about a few innovations, amongst them the creation of two important registries:
As is customary in Brazilian legal practice, Decree 8420 was published within the following yera, on March 18, 2015, which sought to regulate the Brazilian Anti-Corruption Law in detailing the role of each of the aforementioned registries.
The CEIS must hold information regarding administrative sanctions imposed on individuals or companies that might bring about restriction on their right to participate in tenders or to enter into contracts with the public administration of any federative sphere, including:
1. temporary suspension of participation in tenders and impediment to enter into contracts with the public administration, as provided for in subsection III of the caput of article 87 of Law #8666, of 1993;
2. declaration of ineligibility to enter into tender or contract with the public administration, as provided for in subsection IV of the caput of article 87 of Law #8666, of 1993;
3. impediment from entering into tender and contract with the Union, the States, the Federal District, and the Municipalities, as provided for in article 7 of Law #10.520, of July 17, 2002;
4. impediment from entering into tender and contract with the Union, the States, the Federal District, and the Municipalities, as provided for in article 47 of Law #12,462, of August 4, 2011;
5. temporary suspension from participating in tenders and impediment from entering into contract with the public administration, as provided for in subsection IV of the caput of article 33 of Law #12,527, of November 18, 2011; and
6. declaration of ineligibility to enter into tender or contract with the public administration, as provided in subsection V of the caput of article 33 of Law #12,527, of 2011.
The CNEP must hold information referring to:
1. sanctions imposed on the grounds of Law #12,846, of 2013; and
2. non-compliance with a leniency agreement executed on the grounds of Law #12,846, of 2013.
REMOVAL OF REGISTRATIONS
The removal of the data and information held by the CEIS or CNEP shall occur:
1. upon the end of the term of the sanction’s limiting or impeding effect; or
2. upon request of the interested corporation, after fulfilling the following requirements, when applicable:
a. publication of the decision to rehabilitate the sanctioned corporation, in the case of subsections II and VI of the caput of article 43;
b. full compliance with the leniency agreement;
c. repair of the damage caused; or
d. full payment of the penalty applied.
The Brazilian government publishes in the Transparency Portal website the sanctions attributed to corporations along with their inclusion in the respective registries, according to the nature of the violation, as shown in the table below:
Therefore, according to the table above, since the registriescreation in 2015, 12,633 individuals or corporations have been sanctioned and registered in the National Registry of Ineligible and Suspended Companies (CEIS) and 260 individuals or corporations have been sanctioned and registered in the National Registry of Punished Companies (CNEP). The Transparency Portal allows the use of different filters in order to provide individualized or segmented data under different parameters.
If noticed that the inclusion in the registries is due to the nature of the violation, when analyzing the statistical data from the perspective of corruption practices attention should be drawn to the 260 sanctioned and registered in the CNEP, as the CEIS establishes sanctions related to tender processes violations.