Anti-Bribery and Corruption Laws in Brazil

Anti-Corruption Law on the Liability of Legal Entities 

The following are civil offences: 

• Active Bribery (Article 5(i)): “Promising, offering or giving, directly or indirectly, any undue advantage to a public agent or any third party related to him or her.” 
• Sponsoring (Article 5(ii)): “Financing, paying, sponsoring or subsidising in any other manner the commission of any of the illicit acts set out in the law.” 
• Concealment (Article 5(iii)): “Employing a person or legal entity for the purpose of concealing or disguising any of the illicit acts set out in the law”. 
• Various Illicit Acts in Connection with Public Procurement and Concessions (Article 5(iv)): “Frustrate, commit fraud, impede, disturb, force the withdrawal of a bidder, fraudulently incorporate a bidding entity in connection with public procurement, or manipulate or commit a fraud in respect of contracts entered into with Public Administration”. 
• Obstructing Investigations (Article 5(v)): “Hampering or obstructing any investigative or fiscal activities of public bodies, public entities or public officials”. 

The Criminal Code 

• Active Bribery (Article 333): “Offering or promising an undue advantage to a public official to induce him / her to perform, omit or delay an official act.” 
• Misconduct/Extortion in/of Public Officials (Article 316): “To demand an undue advantage, for oneself or for another person, directly or indirectly, even outside the function of a public official or before being appointed as such, but doing so because of one’s position.” Its qualified forms (§1º and §2º)  include abusive or unlawful tax collection, and misappropriation of funds received for the public treasury.
• Passive Bribery (Article 317): “Requesting or receiving, for oneself or for another person, directly or indirectly, even outside the function of a public official or before being appointed as such, but doing so because of one’s position, an undue advantage, or accepting a promise of such advantage.” 
• Traffic of Influence (Article 332): “Requesting, requiring, charging or obtaining, for oneself or for another person, an advantage or promise of advantage in exchange for influencing an act carried out by a public official in the exercise of his / her functions.” 
• Active Bribery in an International Business Transaction (Article 337-B): “Promising, offering, or giving, directly or indirectly, any improper advantage to a foreign public official or to a third person, in order for him / her to put into practice, to omit, or to delay any official act relating to an international business transaction.” 
• Traffic of Influence in an International Business Transaction (Article 337-C): “Requesting, requiring, charging, or obtaining, for oneself or for another person, directly or indirectly, any advantage or promise of advantage in exchange for influencing an act carried out by a foreign public official in the exercise of his functions relating to an international business transaction.” 

Administrative Misconduct Law 

• Acts of impropriety (articles 9, 10 and 11): Article 9 of the Brazilian Law on Administrative Improbity defines illicit enrichment as the unlawful acquisition of any undue financial or material advantage by a public official through intentional misconduct, in connection with the performance of public duties. Such enrichment may occur directly or indirectly and includes situations where the public agent receives or demands bribes, commissions, gifts, or any form of economic benefit from individuals or entities with interests that may be affected by the agent’s actions or omissions. Article 10 defines acts of administrative improbity as any intentional conduct, through action or omission, that causes actual and demonstrable loss to public assets. This includes misappropriation, misuse, waste, or unauthorized transfer or depletion of public funds, goods, or values belonging to the public entities. Article 11 defines as acts of administrative improbity those intentional actions or omissions that violate core principles of public administration, particularly the duties of honesty, impartiality, and legality. These violations include conduct that undermines public trust or the integrity of public functions, even if they do not result in financial loss. 
• Particular effects (art. 3): the law will be applied to the entity or individual who is an accomplice to the act of impropriety; 
• Concomitant Penalties (Article 12): defines other civil penalties that will be applied concurrently with criminal penalties and those of the Anti-Corruption Law. 

Individuals can face imprisonment of up to 12 years and fines 

Legal entities cannot be held criminally liable. However, pursuant to the Anti-Corruption Law, Brazilian and foreign legal entities (and their respective affiliates and successors) can be subject to severe civil sanctions (on a strict liability basis) including: (i) penalties between 0.1 % and 20 % of the corporate entity’s gross annual turnover in the year prior to the commission of the offence. Where it is not possible to calculate the gross annual turnover, a fixed fine of up to BRL 60m (circa USD 26m) is imposed; (ii) an order barring the entity from receiving public grants or incentives for up to five years or permanently prohibiting it from undertaking specific economic activities; (iii) an order dissolving the entity; (iv) confiscation of assets or rights acquired though the illicit act and the obligation to pay damages; and (v) publication of the offence in an official registry 

For individuals, important doctrinal and case law debates arise regarding the official act that is “sold” by the public agent who offers, gives, or provides any undue advantage in exchange. A key point of divergence concerns whether such an act must be concrete and individualized, given that the criminal offence requires the performance or delay of an official act. However, it is possible for the advantage to be offered, given, or promised without a specific legal act or object. In such cases, the discussion does not centre on the existence of a bribe (in lato sensu), but rather on whether there is a concrete quid pro quo.

There is also ongoing doctrinal and case law debate over whether every charge of active corruption necessarily requires a corresponding charge of passive corruption. While the conduct of a public official who requests or receives an undue advantage, or accepts a promise thereof, in exchange for performing an official act is punishable under the crime of passive corruption (Article 317 of the Brazilian Penal Code), it is debated whether there must also be a corresponding charge of active corruption (Article 333 of the Penal Code), which penalizes the conduct of an individual who offers or promises an undue advantage to a public official in order to influence the performance or omission of an official act.

With respect to the civil liability of legal entities, it is not possible to benefit from complete exemption. However; (i) there is a leniency regime in place whereby entities may obtain reductions of up to 2 / 3 of the applicable penalties, and a reduction, or even total exemption of non-pecuniary penalties; and (ii) the Anti-Corruption Law sets out several mitigating circumstances, including whether the entity has implemented an anticorruption system at an organisational level, the value of the contracts in question and the severity of the damage caused by the offence; For entities, it is not necessary to demonstrate intent. 

The leniency agreement can also be applied to natural persons to reduce penalties. In order to punish individuals, it is necessary that the act has been committed with intent or recklessness.