Brazil - Global bribery offenses guide

What is the legal framework governing bribery in Brazil?

The Brazilian legal framework governing bribery encompasses three major areas of the legal system: criminal, civil, and administrative. It is mainly composed of the following legislation:

• Brazilian Penal Code (Decree-Law No. 2,848 of 1940);
• Brazilian Public Procurement Law (Law No. 8,666 of 1993 and Law No. 14,133 of 2021);
• Brazilian Administrative Improbity Act (Law No. 8,429 of 1992);
• Brazilian Antitrust Act (Federal Law No. 8.884/1994 and Federal Law No. 12,529/2011);
• Brazilian Clean Company Act (Law No. 12,846 of 2013); and
• Federal Decree No. 11,129 of 2022 (Brazilian Clean Company Act Decree).

What constitutes a bribe?

A bribe is an undue advantage that can be defined as an advantage not authorized by law, represented by a benefit or interest that is obtained through a corrupt act.

Bribery under Brazilian law demands that one of the parties is a public official as corruption between private individuals is not yet regulated in Brazil.

What are the principal offenses under this legal framework?

The Brazilian legal framework distinguishes offenses related to bribery across the criminal, administrative, and civil spheres:

• Criminal sphere: bribery is typified in the Brazilian Penal Code and divided into passive and active corruption:
  • passive corruption (Article 317) occurs when a public official, directly or through an intermediary, requests, receives, or accepts the promise of an undue advantage, for themselves or for another, even if outside the scope of their official duties or before assuming the position;
  • active corruption (Article 333) is committed by a private individual who offers or promises an undue advantage to a public official, with the intent to induce them to perform, omit, or delay any official act;
  • Articles 337-B and 337-C criminalize active and passive corruption in international commercial transactions.
• Administrative and civil spheres: under the Clean Company Act, legal entities may be held administratively and civilly liable for offering, promising, or giving, directly or indirectly, an undue advantage to a public official or to a third party related to them, to obtain or maintain a business advantage.

What is the jurisdictional reach of the legal framework?

Individuals can be criminally liable for offenses concerning Brazilian public entities (ie federal government, states, counties, public or semi-public companies and other public entities) regardless of where the offense took place, the citizenship of the offender or their place of residence, as set forth in article 7, I, b and c of the Brazilian Penal Code.

Brazilian and foreign companies with a business structure in Brazil can be administratively and/or civilly liable for bribery due to the practice of wrongdoing set forth in the Brazilian Clean Company Act against national or foreign Public Administration.

Who may be liable for bribery? (public officials, private individuals, legal entities etc.)

• Private individuals, public officials and all Brazilian corporate forms, including all subsidiaries of multinational companies;
  • Note that, under the Brazilian system, legal entities are not subject to criminal liability, except in respect of environmental crimes. Nevertheless, members of management, employees and representatives in general of legal entities may be civilly and criminally liable for acts of corruption or bribery involving the legal entity;
  • Besides criminal liability, public officials may also be subject to the Brazilian Administrative Improbity Act. Any private entity/person who instigates, participates or benefits from the illicit act can also be subject to the penalties set forth in the Act.
  • Companies that commit a bribery act may be subject to the penalties set forth in the Brazilian Clean Company Act, regardless of whether the act was committed in conjunction with a public official or not;
  • According to the Brazilian legal framework, a public official is anyone who holds, even if transitorily or without remuneration, a public function or employment, as well as anyone who holds a post, employment or function in government agencies, or in foundations, public companies and mixed economy companies, and other entities that are, directly or indirectly, controlled by the Public Administration;
• foundations;
• associations of entities or individuals; and
• foreign companies with headquarters, branches or representation in Brazil.

Can a parent company be liable for its subsidiary’s involvement in bribery?

Yes. The Brazilian Clean Company Act provides that joint and several liability for fines and the restitution for damages extends to the parent company, controlled entities of the company, affiliates, and joint venture partners.

Liability will attach to a legal entity’s officers and shareholders with management roles, whenever the legal entity is used to facilitate, conceal, or disguise the illicit conduct.

Are facilitation payments (i.e. small payments to speed up routine governmental action) considered bribes?

Yes, the Brazilian anticorruption legal framework does not allow facilitation payments. Provided they meet the criteria, therefore, facilitation payments can be considered bribery as an “improper advantage” (as indicated in question No 3), no matter how small the amount.

Does the legal framework restrict political and charitable contributions?

According to Law No. 9,504/97, individuals can make political contributions in an amount that does not exceed 10% of the person’s gross income.

In 2015, the Brazilian Supreme Court prohibited corporations from making political contributions based on the argument that the limits set forth by the Brazilian legislation on political donations were insufficient to curb the capture of the politician by economic power. Later, the Brazilian National Congress incorporated this decision into the electoral legislation and now legal entities are prohibited from making political donations.

There are no specific legal restrictions on charitable contributions, but the best practices and the guidelines issued by Brazilian Law Enforcement agencies establishes that compliance programs must encompass rules over charitable and any other sort of contributions.

Does the legal framework place restrictions on corporate hospitality?

The Federal Decree No. 10,889 of 2021, which regulates the Conflict-of-Interest Law (Federal Law No. 12,813, of 2013), provides rules applicable to the Federal Executive Branch regarding gifts and hospitalities. Despite being applicable only to the Federal Executive Branch, these rules have been used as basis on the interactions between public officials and private entities in other spheres.

According to the Decree, public officials are prohibited from receiving presents from anyone that has interest in a decision from the public official or from collegiate body he / she participates. This prohibition does not apply to gifts, defined as “items of low economic value distributed in a generalized manner as a courtesy, marketing or habitual promotion”. The Decree also defines low economic value as the amount below 1% of the limit of remuneration established by the Federal Constitution, currently estimated at BRL 463,66.

The Decree also sets forth that hospitalities, defined as “offer of service or expenses related to transport, meals, accommodation, courses, seminars, congresses, events, fairs or entertainment activities, granted by private agent to a public official in the institutional interest of the body or entity he / she acts on“, may only be granted by private entities to public officials with authorization from the public entity linked to the public official. Moreover, the hospitality must: (i) be directly linked to the legitimate purposes of interest representation, in appropriate circumstances of professional interaction, and (ii) have a value compatible with the standards adopted by the Federal Public Administration in similar services or with the hospitalities offered to other participants in the same conditions. The hospitality also cannot be characterized as a personal benefit to the public official.

Note that the Decree also stablishes that the “offer of items or expenses related to transport, meals, accommodation, courses, seminars, congresses, events, fairs or entertainment activities, granted by private agent to a public official, due to his / her activities, but not related to the exercise of institutional representation” is considered a present and must follow the applicable rules.  

The Code of Conduct for the High Federal Administration (Code of Conduct) also contains a set of guidelines and ethical principles to be observed by some federal public officials.

This Code is only applicable to public officials and not to private entities, but it has been commonly used as a basis to set parameters that aim to assess the appropriateness of conduct towards a public official regarding gifts, hospitalities and entertainment.

According to the Code of Conduct, public officials from the High Federal Administration must refrain from accepting presents or other benefits when the person offering the present or benefit is any individual or company that:

• is subject to the regulatory jurisdiction of the agency for which the public official works;
• has any personal, professional or corporate interest with the public official;
• maintains a business relationship with the agency to which the official provides services; or
• represents third parties that have interests with the agency in which the official is employed.

The Code of Conduct also establishes that public officials may accept small free gifts given for advertisement or for celebration of events of a historical and cultural nature. Moreover, its distribution must be generalized (ie it should not be exclusively targeted to a specific public official), and the gift must not be offered more than once every 12 months to the same public official.

After the enactment of the Brazilian Clean Company Act, states and municipalities have also been creating rules on the interactions between public officials and private entities. Brazilian Trade Associations have also been enacting guidelines on hospitalities that its members must abide by.

Are there any defenses for bribery offenses?

Defenses against criminal charges are normally based on arguments of expiration of the statute of limitation and/or allegations that defendants were victims of extortion practiced by the public official involved. Ne bis in idem (double jeopardy) is usually used as a defense for reducing fines imposed due to the varied dimensions of liability under different statutes. Procedural errors and illegality of evidence are also often alleged.

In the administrative and civil spheres, the existence of a compliance program in the implicated legal entity can mitigate sanctions that it can be subject to. According to the Brazilian Clean Company Act, “the existence of internal mechanisms and procedures of integrity, audit and incentive for the reporting of irregularities, as well as the effective enforcement of codes of ethics and of conduct within the scope of the legal entity” will be taken into consideration when applying sanctions. And, according to the Federal Decree No. 11,129 of 2022 (which regulates the Brazilian Clean Company Act), having a compliance program could represent a higher reduction on the potential sanction imposed against the company – up to 5% reduction of the fine amount.

What are the key regulatory or enforcement bodies with regard to bribery?

Enforcement in the criminal sphere is conducted by the state police, the federal police, and the state and federal public prosecutor office. They have the power to investigate and prosecute – respectively – crimes related to bribes.

Enforcement of the Brazilian Clean Company Act against legal entities which commit acts of corruption lies with the highest authorities of each entity of the executive, legislative and judiciary powers. The federal government, the states, the federal district, the municipalities and the public prosecutor office are the authorities that can prosecute acts of corruption and apply civil sanctions.

At federal level, the main relevant agencies are: (i) the General-Comptroller Office: promotes general regulation and enforcement of actions against corruption practices in the federal government; (ii) the General-Attorney Office: defends the interests of the federal powers (Executive, Legislative and Judiciary) in judicial proceedings in which they are the author, defendant or interested third party and (iii) the Federal Court of Auditors: conducts external control of the federal government, assisting the House of Representatives in the mission of monitoring the budgetary and financial execution of the country.

The Brazilian Public Procurement Act establishes criminal and administrative liability. The aggrieved public administration can impose administrative sanctions and the Public Prosecutor Office is responsible for filing the criminal action.

The enforcement of the Brazilian Administrative Improbity Act can be conducted only by the Public Prosecutor Office, according to a recent alteration of the Brazilian Administrative Improbity Act.

What are the legal consequences of being found guilty of bribery offenses?

Individuals can be subject to penalties of (i) a fine; (ii) imprisonment of up to 12 years; (iii) suspension of political rights up to 10 years; (iv) and loss of compensation.

According to the Brazilian Clean Company Act, companies can be subject to administrative and judicial penalties, as follows:

• Administrative:
  • A fine of 0.1% to 20% of the gross revenue in the last year prior to the start of the administrative proceedings; if such criteria cannot be used, the fine will range from BRL6,000 to BRL60 million; and
  • publication of the condemnatory decision.
• Judicial:
  • Prohibition from receiving incentives, subsidies, grants, donations or loans from public agencies or entities and from public financial institutions or institutions controlled by the government, for up to five years;
  • loss of assets, rights or valuables representing the advantage or profit, directly or indirectly, obtained from the wrongdoing;
  • partial suspension or interdiction of the legal entity’s activities; and
  • compulsory dissolution of the legal entity.

Companies can also be subject to the penalties set forth in the Brazilian Administrative Improbity Act. The penalties are:

• loss of assets or money unlawfully incorporated to the total assets of the company;
• fines that will vary according to the illicit act committed: it can be the amount of the illicit gains or damages caused or up to 24 times the amount of the remuneration paid to the public official;
• debarment (prohibition to participate in bids and enter into agreements with public entities) for up to fourteen years;
• prohibition to receive tax or credit benefits or incentives from public entities for up to fourteen years.

In addition to the penalties, civil compensation for damages caused to the public treasury may be requested by the Public Prosecutor Office. Note that, according to a recent alteration of the Brazilian Administrative Improbity Act, the penalties set forth in this law may not be applied to private companies jointly with those established by the Brazilian Clean Company Act.

Are deferred prosecution agreements (DPAs) or other similar settlement mechanisms available?

Yes. There are four main settlement mechanisms available in Brazil:

• leniency programs;
• civil non-prosecution agreements (ANPC);
• collaboration agreements; and
• criminal non-prosecution agreements (ANPP).

The Brazilian Clean Company Act establishes a leniency program under which self-disclosure of corrupt practices and cooperation by corporations could result in a reduction of up to two-thirds of the fine and immunity from some, but not all, sanctions.

In order to qualify for the leniency program, the company must:

• be the first to apply for leniency;
• confess and cease its involvement in the investigated misconduct; and
• commit to full and permanent cooperation with the investigations.

Although the Law refers to leniency, it does not allow for the possibility of full exemption from sanctions. The leniency program was further regulated by Decree No. 11,129/2022, which softened the need to be the first to apply by adding the expression “when such circumstance is deemed relevant.”

In cases where Federal Prosecutors are entitled to act against both companies and individuals, the prosecutors allow individuals to adhere to the leniency agreement in exchange for immunity or softer penalties (Car Wash task force standard). This practice is not foreseen in the Brazilian Clean Company Act, but individuals may get the same benefits they could obtain in a collaboration agreement.

Collaboration agreements are mainly regulated by the Criminal Organization Act (Law No. 12,850/2013) and represent a contract entered between suspects/defendants and prosecutors, granting benefits to the one that effectively and voluntarily collaborates to clarify the facts. The procedure can result in pardon or reduction of up to two-thirds of the penalty.

In order to qualify for the benefits of the collaboration agreement, the individual must:

• voluntarily cooperate with the investigation or criminal procedure; and
• provide information that may produce one or more of the following results, among others:
  • identifying other perpetrators;
  • exposing the structure of a criminal organization;
  • preventing crimes that result from the activities of a criminal organization; and
  • recovery, in whole or in part, of the product or financial gains originated from the criminal activity.

Civil non-prosecution agreements (ANPC) were introduced in the Brazilian Administrative Improbity Act in 2019 by the Law 13,964/2019 (Anticrime Law). ANPC was further regulated by the Instruction No. 18/2021 issued by the General-Comptroller Office, which states that the agreement can be executed in or out of court when it fulfils the following condition:

• admission of guilt;
• cessation of the illicit conduct;
• reparation of damages caused against the public treasury;
• loss of assets or money unlawfully obtained;
• full collaboration to the investigation conducted by the Brazilian Authorities; and
• submission to at least one of the penalties indicated in the Instruction (payment of a fine, prohibition to receive tax or credit benefits or incentives from public entities and loss of the public position – if the defendant is a public official).

Criminal non-prosecution agreements (ANPP) were introduced in the Brazilian Code of Criminal Proceedings also in 2019 by the Anticrime Law, allowing prosecutors and defendants to settle cases of non-violent crimes with a minimum penalty of up to four years. The main requirements for the ANPP are:

• admission of guilt;
• damage compensation, except in the impossibility of doing so;
• waiver of assets and rights;
• rendering of community services;
• payment of a fine; and
• other conditions appointed by the prosecutor, provided it is proportional to the criminal offense.

Summary provided by Campos Mello Advogados, an independent law firm working in cooperation with DLA Piper.