02/09/2013
L12846
Presidency of the Republic Civil Cabinet Cabinet Subcommittee for Legal Affairs Law No. 12,846, 1ST AUGUST 2013. Veto message
Provides for civil and administrative liability of legal persons for the commission of acts against the public administration, national or foreign, and other measures.
Validity
The PRESIDENT OF THE REPUBLIC it known that the National Congress decrees and I sanction the following Law: CHAPTER I GENERAL PROVISIONS Article 1 to this Act provides for the accountability objective administrative and civil legal persons for the practice of acts against the public administration, national or foreign. Single paragraph. Applies this Act to business companies and firms simple, personified or not, regardless of the form of organization or corporate model adopted, as well as any foundations, associations, entities or persons, or foreign companies which have their registered office, branch or representation in Brazil, consisting of fact or law, even temporarily. Article 2 The Legal entities shall be liable objectively, in the administrative and civil actions harmful by this Law committed in their interest or benefit, exclusive or not. Article 3 the accountability of the entity does not exclude individual liability of its directors or officers or any natural person, author, coauthor or participant in the tort. ยง 1 The A legal person shall be liable regardless of the individual responsibility of natural persons referred to in the caput . ยง 2 the leaders or administrators will only be liable for the tort measure of his guilt. Art 4 the There remains the responsibility of the corporation in the event of contractual change, transformation, merger or spin-off corporation. ยง 1 The In the event of merger and acquisition, the responsibility of the successor will be restricted to the obligation to pay fines and full compensation for the damage caused to the limit of the assets transferred, will not be applicable to other penalties provided in this Act arising out of acts and events that occurred before the date of the merger or consolidation, except for simulation or apparent intention of fraud, duly proven. ยง 2 The companies, subsidiaries, or affiliates, under their contract, the consortium will be jointly and severally liable for the commission of acts referred to in this Act, restricting this responsibility to the obligation to pay fines and full compensation for the damage caused. CHAPTER II ACTS OF HARMFUL TO PUBLIC ADMINISTRATION NATIONAL OR FOREIGN
www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/2013/Lei/L12846.htm#art31
1/8
02/09/2013
L12846
Article 5 The following constitute acts detrimental to public administration, national or foreign, for the purposes of this Act, those committed by legal persons mentioned in paragraph of art. 1 a , which offend against public property domestic or foreign, against the principles of public administration or against the international commitments made by Brazil, defined as follows: I - promise, offering or giving, directly or indirectly, any undue advantage to a public servant or a third person related to him; II - proven, finance, fund, sponsor or otherwise subsidize the practice of unlawful acts provided for in this Law; III - proven to make use of a third party or entity to conceal or disguise their real interests or the identity of the beneficiaries of the actions taken; IV - regarding bids and contracts: a) frustrating or defraud, adjusting, combination or any other expedient, the competitive nature of the public bidding procedure; b) prevent, hinder or defraud the performance of any act of public bidding procedure; c) away or look away bidder, by fraud or offering advantage of any kind; d) defrauding public bid or resulting contract; e) create, fraudulently or irregular entity to participate in public bidding or enter into administrative contracts; f) obtain improper advantage or benefit, fraudulently, modifications or extensions of contracts with the government, without authorization by law, in the call of public bidding or their contractual instruments, or g) manipulate or defraud the economic and financial balance of the contracts with the public administration; V - hinder research activity or supervisory organs, bodies or officials, or intervene in its operations, including in the context of regulatory agencies and supervisory bodies of the national financial system. § 1 it is considered foreign government agencies and government or diplomatic representations of foreign country, at any level or sphere of government as well as corporate entities controlled directly or indirectly by the government of a foreign country. § 2 the organizations.
For the purposes of this Act, are equivalent to the foreign government public international
§ 3 it is considered foreign public official, for purposes of this Act, who, albeit temporarily or unpaid, engaged position, employment or civil service bodies, state bodies or in diplomatic representations abroad, as well as corporate controlled, directly or indirectly, by the government of a foreign country or in public international organizations. CHAPTER III ACCOUNTABILITY OF ADMINISTRATIVE Article 6 The At administrative level, will apply to legal persons held liable for the harmful acts provided for in this Law the following sanctions: www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/2013/Lei/L12846.htm#art31
2/8
02/09/2013
L12846
I - fine in the amount of 0.1% (one tenth percent) to 20% (twenty percent) of the gross revenues of the last year prior to the initiation of administrative proceedings, excluding taxes, which will never be less than the advantage obtained, when possible your pet, and II - extraordinary publication of the sentence. § 1 the sanctions will be applied justifiably, individually or cumulatively, according to the peculiarities of the case and the gravity and nature of the violations. § 2 the application of the penalties provided in this article will be preceded by elaborate legal manifestation of Public Advocacy or the board of legal assistance, or equivalent, of the public entity. § 3 the application of the penalties provided in this article does not, in any event, the requirement of full compensation for the damage caused. § 4 the the event of item I of caput , if you can not use the criterion of the value of the gross revenues of the legal person, the fine will be R $ 6,000.00 (six thousand reais) to R $ 60,000,000.00 ( sixty million dollars). § 5 The Publication extraordinary conviction occurs in the form of extract sentence at the expense of the corporation, in the media of general circulation in the area of practice of the infraction and action of the corporation or, failing that, in publishing national circulation, as well as by posting a notice at least 30 (thirty) days, on the premises or place of exercise activity, so visible to the public, and on the website on the world wide web. § 6 the (vetoed). Article 7 The will be taken into consideration in the application of sanctions: I - the seriousness of the offense; II - the advantage obtained or intended by the offender; III - the consummation of the offense or not; IV - the degree of injury or threat of injury; V - the negative effect produced by the offense; VI - the economic situation of the offender; VII - cooperation of the corporation for the investigation of offenses; VIII - the existence of mechanisms and procedures for integrity, auditing and encourage whistleblowing and effective implementation of codes of ethics and conduct within the legal person; IX - the value of contracts held by the legal entity with the public agency or entity injured, and X - (vetoed). Single paragraph. The evaluation parameters of mechanisms and procedures provided for in section VIII of the caption will be established by regulation of the federal executive. CHAPTER IV ADMINISTRATIVE PROCEEDINGS OF ACCOUNTABILITY www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/2013/Lei/L12846.htm#art31
3/8
02/09/2013
L12846
Article 8 the trial and the initiation of administrative proceedings for determination of the liability of legal persons fit the head of each agency or entity of the Executive, Legislative and Judiciary, who shall act ex officio or upon request, subject to the contradictory and defense. § 1 the competence and judgment for the establishment of the administrative determination of liability of the legal person may be delegated, sealed sub-delegation. § 2 the Under the federal executive branch, the Comptroller General of the Union - CGU have concurrent jurisdiction to prosecute administrative liability of legal persons or to arrogate the proceedings on the basis of this Law, to take regular or to correct their progress. Article 9 to the competence of the Comptroller General of the Union - CGU to calculate, process, and trial of unlawful acts provided for in this Law, committed against a foreign government, subject to the provisions of Article 4 of the Convention on Combating Bribery of Public Officials Foreigners in International Business Transactions, promulgated by Decree the 3,678, of November 30, 2000 . Article 10. The administrative process for determining the liability of a legal entity shall be conducted by a committee appointed by the authority instauradora and composed by two (2) or more stable servers. § 1 the The public entity, through its legal representative body, or equivalent, at the request of the committee referred to in the caput , may require legal action for the investigation and processing of violations, including search and seizure. § 2 the The committee may, as a precaution, propose to the instauradora to suspend the effects of the act or process of investigation. § 3 the The commission shall complete the process within 180 (one hundred eighty) days from the date of publication of the act to establish and, ultimately, reporting on the facts found and the possible liability of the legal entity, so suggesting motivated sanctions to be applied. § 4 The period provided for in § 3 the may be extended by an act of authority based instauradora. Article 11. In administrative proceedings to determine liability, will be granted to a legal entity within thirty (30) days for the defense, starting from the subpoena. Article 12. The administrative process, with the committee's report will be forwarded to the authority instauradora, pursuant to art. 10, for trial. Article 13. The prosecution of a specific administrative integral reparation of the damage does not affect the immediate application of the sanctions established by this law Single paragraph. Completed the process and no payments, the credit will be determined enrolled in outstanding debt Exchequer. Article 14. The legal personality may be disregarded when used with the duty to facilitate abuse, concealing or disguising the illicit practice of the acts provided for in this Act or to cause confusion sheet being extended all the effects of the sanctions applied to the legal entity to its officers and members with powers of administration, observed the contradictory and defense. Article 15. The committee appointed for determination of the liability of legal persons, upon completion of the administrative proceedings, shall inform the prosecutor of his existence, for determination of any wrongdoing. CHAPTER V THE AGREEMENT LENIENCY www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/2013/Lei/L12846.htm#art31
4/8
02/09/2013
L12846
Article 16. The head of each agency or public entity may enter into leniency agreement with the legal entity responsible for the commission of acts referred to in this Act to effectively collaborate with the investigations and administrative proceedings, and this collaboration results: I - the identity of others involved in the offense, when appropriate, and II - getting quick information and documents proving the offense under investigation. § 1 to the agreement mentioned in the caption can only be executed if fulfilled cumulatively the following requirements: I - the legal person is the first to manifest on their interest to cooperate in the investigation of the illegal act; II - the legal entity ceases completely investigated its involvement in the infringement from the date of filing of the agreement; III - the corporation admit their involvement in illicit and fully collaborates with the investigations and administrative proceedings, appearing at its expense, whenever requested, all procedural acts, until its closure. § 2 The Celebration of the leniency agreement exempt the person from legal sanctions provided in item II of art. 6 a and item IV of article. 19 and reduce by 2/3 (two thirds) of the value of the applicable fine. § 3 to the leniency agreement does not relieve the person's legal obligation to make full reparation for the damage caused. § 4 the The leniency agreement will stipulate the conditions necessary to ensure the effectiveness of the collaboration and the outcome of the proceedings. § 5 the effects of the leniency agreement will be extended to legal entities belonging to the same economic group, in fact and in law, since who enter into the agreement together, the conditions laid down therein. § 6 the The proposed leniency agreement will only become public after the execution of such agreement, except in the interest of investigations and administrative proceedings. § 7 it rejected.
will not matter in recognition of the practice of tort investigated the proposed leniency agreement
§ 8 the In case of breach of the leniency agreement, the corporation will be barred from celebrating new agreement for a period of three (3) years of knowledge by the public administration of default. § 9 the celebration of the leniency agreement interrupts the limitation period of the unlawful acts provided for in this Law § 10. The Comptroller General of the Union - CGU is the body empowered to conclude agreements for leniency under the federal executive branch, and in the case of harmful acts committed against a foreign government. Article 17. The government may also enter into leniency agreement with the legal entity responsible for the commission of unlawful acts provided in the Law the 8666 of June 21, 1993 , with a view to exemption or mitigation of administrative penalties established in their arts. 86 to 88 . CHAPTER VI THE JUDICIAL ACCOUNTABILITY www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/2013/Lei/L12846.htm#art31
5/8
02/09/2013
L12846
Article 18. At the administrative level, the responsibility of the legal person does not exclude the possibility of accountability in the judicial sphere. Article 19. Because the practice of acts referred to in art. 5 to this Act, the Union, the States, the Federal District and the municipalities, through their respective advocacies Public bodies or legal representation, or equivalent, and the Attorney General may bring an action in order to apply the following penalties to corporations offenders: I - forfeiture of property, rights or securities representing advantage or profit directly or indirectly obtained from the infringement, subject to the right of the injured party or a third party in good faith; II - partial suspension or interdiction activities; III - compulsory dissolution of the corporation; IV - ban on receiving incentives, subsidies, grants, donations or loans to public bodies or entities and public financial institutions or controlled by the public for a minimum period of one (1) and maximum of five (5) years. § 1 The A compulsory dissolution of the legal entity will be determined when proven: I - have been legal personality used in the usual way to facilitate or promote the commission of unlawful acts, or II - have been made to conceal or disguise illicit interests or the identity of the beneficiaries of the acts committed. § 2 the (vetoed). § 3 the sanctions may be applied individually or cumulatively. § 4 the Public Prosecutor or the Public Advocacy representative body or court, or equivalent, the public entity may require the unavailability of goods, rights or values required to guarantee payment of the fine or full a compensation of the damage caused, as provided in art. 7 , subject to the right of the third party in good faith. Article 20. In lawsuits filed by the prosecutor, may be subject to the sanctions provided for in art. 6 the without prejudice those specified in this Chapter, provided that detected the omission of the competent authorities to promote administrative accountability. Article 21. The actions of judicial accountability, it will be adopted the rite provided in Law the 7347 of July 24, 1985 . Single paragraph. The sentence makes certain the obligation to compensate fully, the damage caused by illegal, whose value will be determined in the subsequent settlement is not clearly indicated in the sentence. CHAPTER VII FINAL PROVISIONS Article 22. Is created under the federal executive of the National Registry of Enterprises punished - CNEP will bring together and give publicity to the penalties imposed by agencies or entities of the Executive, Legislative and Judicial branches of all levels of government based on this Law § 1 the bodies and entities referred to in the caput shall inform and keep updated on CNEP, data relating to penalties they impose. www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/2013/Lei/L12846.htm#art31
6/8
02/09/2013
L12846
§ 2 the The CNEP will contain, among others, the following information about the penalties: I - Company name and registration number of the person or legal entity in the National Register of Legal Entities - CNPJ; II - type of sanction, and III - implementation date and end date of validity of the limiting effect of the impediment or penalty, if applicable. § 3 the competent authorities, to celebrate leniency agreements provided for herein, shall also provide and maintain updated the CNEP after the execution of such agreement, the information about the leniency agreement signed, unless that procedure does cause damage to investigations and administrative proceedings. § 4 the If the corporation does not comply with the terms of the leniency agreement, in addition to the information specified in § 3 it should be included in the CNEP reference to such non-compliance. § 5 the records of sanctions and leniency agreements are deleted after expiry of the period previously agreed upon sanctioning or full compliance leniency agreement and repair any damage, upon request of the agency or entity sanctioning. Article 23. Bodies or agencies of the Executive, Legislative and Judicial branches of all levels of government should inform and keep current, for advertising purposes, the National Registry of Companies and inapt Suspended - CEIS, both public, established under the federal executive , data on the penalties they impose, pursuant to the provisions of arts. 87 and 88 of Law 8666 of June 21, 1993 . Article 24. The fine and forfeiture of property, rights or values applied on the basis of this law will be used in preference to public bodies or entities harmed. Article 25. Prescribe in five (5) years of the offenses covered by this Law, the date of the offense or of science, in the case of permanent or continuing offense, the day on which it ceased. Single paragraph. In administrative or judicial, prescription is interrupted by the prosecution that has as its object the determination of the offense. Article 26. The entity will be represented in the administrative process in the form of its bylaws or articles. § 1 the companies without legal personality will be represented by the person who fits the administration of their property. § 2 The A foreign legal entity is represented by the manager, agent or manager of its branch, agency or branch opened or installed in Brazil. Article 27. The competent authority, having knowledge of the offenses under this Act, does not take steps to investigate the facts be liable criminal, civil and administrative under specific legislation. Article 28. This Act applies to acts that harm practiced by a Brazilian entity from a foreign public administration, even if committed abroad. Article 29. The provisions of this Act does not exclude the powers of the Administrative Council for Economic Defense, the Ministry of Justice and the Ministry of Finance to adjudicate fact that constitutes infringement of the economic order. Article 30. The sanctions provided for in this Act does not affect the processes of accountability and impose penalties arising from: www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/2013/Lei/L12846.htm#art31
7/8
02/09/2013
L12846
I - act of administrative misconduct under the Law the 8429 of June 2, 1992 , and II - unlawful acts made by Law n the 8666 of June 21, 1993 , or other provisions of bids and contracts of public administration, including with regard to unusual Procurement Regime - DRC established by Law n the 12,462 of 4 August 2011 . Article 31. This Law shall enter into force 180 (one hundred eighty) days after the date of its publication. Brasilia, 1 to August, 2013, 192, the Independence and 125 the Republic. Rousseff José Eduardo Cardozo Luís Inácio Lucena Adams Jorge Hage Sobrinho This does not replace the text published in the Official Gazette on 08.02.2013
www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/2013/Lei/L12846.htm#art31
8/8