In the past couple of months there has been enormous interest in the rules set out in Federal Law No. 12,846, of August 1st, 2013, regarding the strict, administrative and civil liability, legal persons bear for the practice of acts against the national or foreign public administration. This legislation also brings individual liability to be borne by directors, administrators and public managers, which is subjective in character. A number of parallelisms between Federal Law No. 12,846 and international and foreign instruments corresponding to the anti-corruption legislation does emerge: one immediately thinks of the "Convention on Combating Bribery of Foreign Public Officials in International Business Transactions"; the "Foreign Corrupt Practices Act" and the "U.K. Bribery Act".
Whilst the interest in Federal Law No. 12,846 has been considerable, its enforcement has been so far scant. The main reason might have been the lack of a Federal Decree to regulate how compliance programs are to be taken into account by authorities in deciding on penalties. This may change. Federal Decree No 8,429, of March 18th, 2015, has just been issued. Articles 41 and 42 outline the main rules companies should be looking at.
As it is, one should say, there is already enough case law of the Superior Court of Justice to guide lawyers in regards to most of the challenges posed by this legislation. In a study I have published (in Portuguese here), I have found that (i) the strict character of the liability of legal persons, dispensing proof of fault, does not avert the need of proof of conduct showing a causal link with the practice of the offence; (ii) the individual liability of the natural persons dealt with by the law is subjective; (iii) the public manager, considered to be the highest authority of each public body or entity, or its delegate, bears a subjective liability for not having investigated facts, of which he might have been aware.
Now in the following posts I shall write about compliance programs as regulated by Federal Decree No. 8,429.