The key legislation in Brazil regarding anti-bribery and anti-corruption includes: (1) the Brazilian Criminal Code (Law n. 2,848/40), and (2) Law n. 12,846/2013, known as the “Anti-Corruption Act” or “Clean Company Act”.

The Brazilian Criminal Code provides for crimes committed by individuals, whether public officials or private persons, against the government. Among such crimes are those of corruption (active and passive), set forth under Articles 333 and 317, respectively, corruption in international transactions, set forth under Article 337-B, and graft (extortion practiced by a public official), set forth under Article 316.

Law 12,846/2013, regulated by Presidential Decree n. 8.420/15 issued in 2015, sets forth the administrative and civil liability of legal entities that perpetuate a wrongful act against domestic or foreign governments. Under this law, a company is held objectively liable for the acts of its representatives performed in its interest or benefit, meaning that neither intent nor culpability needs to be proven for the legal entity to be liable.

Other legislation enacted is also used to address corruption issues, including Law n. 8,429/92 (Improbity Law); Law n. 7,347/85 (Public Civil Action Law), Law n. 8.137/90 (Economic Crimes Law), Law n. 14,133/21 (Bidding Procedures Law), Law n. 9,613/98 (Money Laundering Law), and Law n. 12,850 / 13 (Criminal Organization Law).

Moreover, Brazil is a signatory to four international treaties on corruption, all of which have been enacted by Legislative Decrees no. 3,678/2000, 4,410/2002, 5,015/2004 and 5,687/2006, intending to ensure that no public servant is corrupted in their relationship with private entities.

Yes, the Anti-Corruption Act (Law 12,846/2013), came into force on January 29, 2014. Additionally, to the enactment of Law 12,846/2013, in 2020, alterations were made to the Brazilian Bidding legislation and Improbity Law

On April 1, 2021, the new Public Bidding Law (Law 14,133/2021) came into effect, introducing advances in legal instruments to prevent corruption and related acts during public procurement, including the increase of criminal penalties for individuals that defraud public bidding procedures There were also amendments to the Improbity Law (Law 14.230/2021), enacted on October 25, 2021, the most relevant of them establishing that public agents and other related parties shall only be held liable for violations of such legislation if their intent to violate the law.

Yes, the Criminal Code and the Anti-Corruption Act prohibit bribe payments to domestic government officials. 

The act of bribe payment to domestic government officials is punishable pursuant to section 333 of the Criminal Code.

The Anti-Corruption Act sets forth the administrative and civil liability of legal entities that perform a wrongful act against the domestic government or a foreign government, whether local, state or federal. Thus, the law prescribes a broader definition of wrongful acts against public administration in Brazil and overseas, prohibiting legal entities from the offering, promising or giving an undue advantage to a national or foreign public official, but also, from (i) financing, paying, sponsoring or by any other means facilitating such illegal acts; (ii) using an intermediary (individual or legal entity) to conceal the real objective or the identities of the beneficiaries of the acts committed; and (iii) hindering or interfering with the government’s investigations or hearings, among other conducts.

Yes. In addition to the provisions of the Criminal Code (section 337-B) (applicable to individuals) and the Anti-Corruption Act (applicable to legal entities), Decree no. 3,678/2000 resolves issues regarding offenses related to the corruption of foreign public officials and the measures that must be adopted by the signatory states.

Yes. The Criminal Code prohibits passive corruption. It prohibits soliciting or receiving for oneself or for another, directly or indirectly, even if not holding the position or prior to holding it, however by reason of it, an undue advantage, or accepting a promise of such advantage.

The Criminal Code is applicable to both private individuals and public officials involved in these crimes. The punishment of international public officials depends on international cooperation agreements between Brazil and certain countries.

The Anti-Corruption Act applies to any corporation, foundation or association that has its registered office, branch or representation in Brazil and engages in any harmful act against a “public administration.” Both foreign governments and public international organizations are included in the definition of “public administration.”

As a rule of the Brazilian legal system, there is no corporate criminal liability and only an individual who is directly related to the illegal activity can be held liable for the crime. (the only exception to this rule is set forth in the Federal Constitution, which allows corporate criminal liability for environmental crimes). However, Law 12,846/2013 and other legislation, including Law 14,133/2021 and Law 8,429/1992, provide for administrative and civil liability.

According to the Criminal Code, section 333 the penalty for active or passive bribery is imprisonment ranging from two to twelve years, plus a fine to be defined by the court. Moreover, individuals can receive penalties that include imprisonment and fines for violations of additional legislation, including violations of the Improbity Law and Public Bidding Law.

As set forth by the Anti-Corruption Act, corporate entities are subject to administrative penalties which include (1) fines in the amount equivalent to a maximum of 20% of the gross sales for the previous fiscal year or up to R$ 60 million, if the gross sales cannot be determined, and (2) full publicity of the judgment.

The law also provides for civil liability of legal entities, that can result in:

1. full compensation for the damages caused;

2. forfeiture of property, rights or amounts representing advantage or profit directly or indirectly obtained from the infraction, subject to the right of the injured party or a third party acting in good faith;

3. partial suspension or interdiction of the activities of the company;

4. compulsory dissolution of the company; and

5. a prohibition from receiving incentives, subsidies, grants, donations or loans from public agencies and public financial institutions or from financial institutions controlled by the government, for a minimum of one year and a maximum of five years.

The existence of an effective compliance program is not sufficient in itself to constitute a legal defense able to exclude liability due to the strict liability feature of the law. However, a company’s compliance program may give rise to a reduction of the applicable sanctions.

Decree No. 8,420/2015 provides that, out of the set penalty (up to 20% of the company’s turnover) a discount of 1% to 4% of the turnover will be given to companies that can demonstrate that they not only have a compliance program but also effectively apply it, according to certain parameters.

Yes. The Anti-Corruption Act regulates the possibility for corporate entities to seek leniency agreements with the enforcement authorities. The interested party must (1) confess its involvement in the wrongful conduct, (2) identify other participants, when applicable, and (3) fully cooperate with the authorities in the course of the investigation. In turn, the entity may receive a reduction of up to two-thirds of the applicable fine.