By Guilherme Missali[1]

 

On the occasion of the Thinking the Law Project, an initiative of the Secretariat for Legislative Affairs of the Ministry of Justice, a public consultation was opened to address 6 major axes of debate[2] associated with “anti-corruption measures” in the context of judicial and administrative proceedings. In general, the objective of this consultation is to promote the participation of civil society by proposing ideas and efficient and effective solutions to dismantle corruption in this sphere, a complex task in the light of the dimension of the subject, and which rightly demands a plan of action. articulated action between all sectors (government, private initiative and society). By incorporating the ethical sense and the spirit of collective commitment, fertile ground is inferred for the strengthening of democratic bases and also the advance of the competitiveness of the Brazilian market[3].

In view of this panorama, it is opportune to underline brief, but worthy of note, considerations about a parallel and fundamental issue in this theme. vis-à-vis its developments in a broader context, as explained below.

In an abbreviated balance sheet, considering almost a year and a half of the entry into force of Federal Law No. 12.846 / 2013 (“Clean Company Law”)[4], which, as is known, deals with the objective administrative and civil liability of legal entities for the practice of acts against public administration, national or foreign, since then there has been a gradual and positive change in culture in the Brazilian legal system, particularly in the business dynamics, when facing issues related to corruption.

In this context, the most diverse business efforts that motivated (and continue to do so) to raise awareness about corporate compliance and business integrity are punctuated, seeking, in the end, to establish ethical values ​​in the public / private relationship, which honors the preventive paradigm. In a pragmatic way, it is the understanding that ethics and corporate integrity matter, as being “the right thing to do” and a path with no return, the main lines of this dynamic. In this context, therefore, the organizational culture of many companies has been the subject of a thorough review.

Given this, it is argued that the normative evidence provided a fruitful scenario for economic agents to rethink the modus operandi of their businesses to gradually improve their internal compliance policies and guidelines, in order to ensure a solid and transparent environment, guided by morality and governance in all types of interaction (this is the ideal scenario envisioned).

Due to the sensitivity that is inherent to the theme, there is a growing commitment in the business horizon, whose commitment by top management consists of a basic premise, that is, a starting point in order to substantially instill the issue and, thus, promote high levels of awareness. internal corporis (including and in a desirable manner when pertinent, extending this mentality to the business partners with whom the company relates). Undoubtedly, this approach works as a key element to, together with other concatenated legal provisions and measures, effectively prevent, detect and combat corruption and corporate impunity at its core.

In light of this reality, and more precisely of interest in this article, even though only 20% of Brazilian companies have an Integrity Program that is disclosed to the external and internal public (wide dissemination), as found in an audit company survey.[5]^-[6], and without going into the merit of the effectiveness of the program itself, a fact is that, since the Clean Company Law came into force, a series of measures has been and has been implemented by companies (respecting, naturally, factors such as time, intensity, adaptation, etc.), which would allow to see, in a way, a virtuous circle of transformation in progress. Obviously, it is imperative to assess the robustness of corporate compliance policies and the respective degree of legal adequacy; this is not questioned.

Without prejudice, however, the fact that there was this more crystalline perception, coupled with the understanding that facing corruption is a relevant part of a multidisciplinary task to combat a greater evil, that is, that society as a whole loses if the mentality about impunity not changing, it reflects an important advance, the result of several initiatives carried out in recent times, and it signals that the confrontation of the subject is taking appropriate directions, notably in the corporate context.

Under this approach, it is expected that the mentioned percentage will be increased in the short term. This is because, despite an (effective) Integrity Program, it can function as an important factor to mitigate eventual sanctions under the Clean Company Law (depending on the official assessment), the focal point lies in the critical dimension that the subject has taken. In other words, as part of an internal commitment to ethics and governance and in the face of accountability to others stakeholders and from society in general, companies have noticed the relevance of implementing this type of program in a broader scenario, which extrapolates only and exclusively the incentive to mitigate the penalty, foreseeing, in fact, several aggregated benefits.

However, it is not enough to structure this program only if additional procedures are not put in place for its respective feasibility, wide dissemination and optimum effectiveness. Viewed from this perspective, the genuine Integrity Program is seen as an asset that generates competitive advantage for the agent who structures it diligently, actively incorporating its guidelines into business practice. On the other hand, the cost of following the margin of this reality can be immeasurable (to quote the basics, a thorough examination is not necessary to infer the reputational damage caused to agents who engage in corrupt practices, in addition to other contingencies of various magnitudes, which may result, in a more drastic view, in the complete unfeasibility of the company's activities)[7].

In summary, in view of these specific considerations, the message we are trying to convey is that, without a doubt, there is a profound process of adaptation in the business dynamics, with corruption being the most sensitive issue on the debate agenda. In general, the mentality of economic agents seems to be aligned in the sense that, under the legality and legitimacy basis, it does not tolerate any deviations, abuses or corrupt practices, strictly repressing impunity. It is not by chance that this way of thinking corroborates the spirit of the Clean Company Law.

Starting from this rationale, therefore, there is a substrate to strengthen the healthy relationship that must prevail between public and private agents. Usually, the challenges exorbitate the theory and tend to be more complex in practice, hence they must be faced in the light of the specific case.

In any case, considering the first signs of this period of validity of the Clean Company Law with regard to the Integrity Program, the results are encouraging, especially after the publication of the Decree that regulated it, with a greater convergence of interests and understanding in the market.

As a prognosis, the expectation is that, within the scope of the Integrity Program, more and more agents are becoming aware of its real importance (and of the various underlying benefits), in order to witness an effective increase in terms of robust implementation. This process must be in tune with the clarifications of the competent authority, providing the necessary legal certainty.

From the point of view of the Clean Company Law itself, the expectation is that tools will mature in the fight against impunity and corruption, which requires, among other measures, greater clarity and objectivity regarding legal procedures. Finally, and as a basic assumption in the sense of cohesion and consistency, the harmonic interaction between all the actors involved stands out, a driving force that will allow the constant refinement of strategies and, thus, guarantee the enforcement effective.

[1] William Missali is a lawyer in São Paulo, working in the areas of Competition Law and Anti-Corruption Law.

[2] Available on the following website:http://participacao.mj.gov.br/anticorrupcao/>. Accessed on June 15, 2015. In summary, the axes proposed for debate are: (i) data, statistics and monitoring; (ii) judicial and administrative proceedings; (iii) asset recovery; (iv) integration and articulation between agencies; (v) creation of specialized internal structures to face corruption; and (vi) Law No. 8.429 / 1992 (Administrative Improbity Law). As a reference, the consultation on screen was opened on June 08, 2015 and ends on July 08, 2015.

^[3] To illustrate the relevance of discussing strategies and mechanisms based on the costs linked to corruption, it is highlighted that its cost [corruption], as estimated by the World Economic Forum, is equivalent to US $ 2,6 trillion per year, which corresponds to approximately 5% of the global Gross Domestic Product.

^[4] The Clean Company Law was published in the Federal Official Gazette on August 02, 2013 and entered into force on January 29, 2014.

[5] Available on the following website:

<http://www2.deloitte.com/content/dam/Deloitte/br/Documents/risk/LeiAnticorrupcao.pdf>. Accessed on June 15, 2015. The survey was conducted in September 2014 by Deloitte and was based on a universe of 124 companies with revenues between R $ 50 million and R $ 2,5 billion. It should be noted that, of this total, 36 do in fact have an Integrity Program, but only disseminate it internally. This survey found, among other interesting information, the fact that 57% of companies understand that corruption is an intrinsic cost in the way of doing business in the country. In addition, 29% of companies believe that the importance of the risk of corruption has greatly increased in Brazil in the last 2 years.

[6] It should be noted that at the time of this survey, Federal Decree No. 8.420 / 2015, which regulates the Clean Company Law, had not yet been published, so that there are a series of open points that generate uncertainties in the business universe, being the parameters and evaluation criteria of the Integrity Program one of these points. Thus, although it is possible to estimate an increase in companies that have fully implemented and disseminated their Integrity Program in the meantime, the survey under analysis works as a sampling reference that, in fact, does not harm the core of this article, since the objective The main objective is to signal the mobilization that has taken place in the market in view of the thematic relevance, and the benefits derived from the Integrity Program, seen as one of the useful instruments under the ratio preventive.

[7] According to the survey mentioned in a note above, 38% of the companies reported that reputational damage is that which is considered to have the greatest impact when discovering cases of corruption. Then, concerns were reported regarding actions taken due to the infraction (23%) and the related financial loss (17%). In time, it is worth noting that some companies that have been involved in corruption crises in the past, despite the numerous losses absorbed, have successfully overcome the adversity scenario, strengthening their integrity instruments, in order to function as a benchmark in the market. This reveals the intelligence to see in the adversity a horizon of opportunities to be explored.