Among the new features, we highlight:
The dosimetry of the fine will consider the Integrity Program for its reduction of up to 5% (Article 23, paragraph b, item V of Decree 11.129/2022), but now in this case it will only be validated "when the integrity plan is prior to the commission of the wrongful act" (Article 23, sole paragraph, item III of Decree 11.129/2022).
In addition, now already in the PAR summons the company must submit the documents that allow the analysis of the integrity program (Article 6 of Decree 11.129/2022)
Based on these considerations, it can be seen that the legislation now benefits the prior existence of an Integrity Program, and those companies, which seek to develop an Integrity Program in a reactive manner after the instauration of a PAR, do not obtain the same benefits.
Furthermore, the aforementioned Decree expanded the concept of "Integrity Program" to make its objectives clearer, maintaining the description in Decree 8,420/2015 that it is a "set of mechanisms and internal procedures for integrity, auditing and encouraging whistleblowing and the effective application of codes of ethics and conduct, policies and guidelines," but including two objectives for the Program:
For analyzing an Integrity Program, Decree 11,129/2022 brought new parameters in relation to the old decree, as shown in the comparative table:
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Old parameters of Decree 8,420/2015 (Art. 42) |
New parameters of Decree 11.129/2022 (Art. 57) |
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I - commitment from the top management of the legal entity, including the boards, evidenced by visible and unequivocal support for the program; |
I - commitment of the top management of the legal entity, including the boards, evidenced by visible and unequivocal support for the program, as well as the allocation of adequate resources; |
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II - standards of conduct, code of ethics, integrity policies and procedures, applicable to all employees and administrators, regardless of position or function exercised; |
II - standards of conduct, code of ethics, integrity policies and procedures, applicable to all employees and administrators, regardless of position or function exercised; |
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III - standards of conduct, code of ethics and integrity policies extended, when necessary, to third parties such as suppliers, service providers, intermediary agents and associates; |
III - standards of conduct, code of ethics and integrity policies extended, when necessary, to third parties such as suppliers, service providers, intermediary agents and associates; |
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IV - periodic trainings on the integrity program; |
IV - periodic trainings and communication actions on the integrity program; |
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V - periodic risk analysis to make the necessary adaptations to the integrity program; |
V - adequate risk management, including its analysis and periodic reassessment, to make the necessary adaptations to the integrity program and the efficient allocation of resources; |
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VI - accounting records that fully and accurately reflect the transactions of the legal entity; |
VI - accounting records that fully and accurately reflect the transactions of the legal entity; |
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VII - internal controls that ensure the prompt preparation and reliability of the legal entity's financial reports and statements; |
VII - internal controls that ensure the prompt preparation and reliability of the legal entity's financial reports and statements; |
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VIII - specific procedures to prevent fraud and illicit acts in the scope of bidding processes, in the execution of administrative contracts or in any interaction with the public sector, even if intermediated by third parties, such as the payment of taxes, subjection to inspections, or obtaining authorizations, licenses, permits and certificates; |
VIII - specific procedures to prevent fraud and illicit acts in the scope of bidding processes, in the execution of administrative contracts or in any interaction with the public sector, even if intermediated by third parties, such as the payment of taxes, subjection to inspections, or obtaining authorizations, licenses, permits and certificates; |
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IX - independence, structure and authority of the internal body responsible for the application of the integrity program and supervision of its compliance; |
IX - independence, structure and authority of the internal body responsible for the application of the integrity program and supervision of its compliance; |
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X - channels for whistleblowing, open and widely disseminated to employees and third parties, and mechanisms for protecting whistleblowers in good faith; |
X - channels for whistleblowing, open and widely disseminated to employees and third parties, and mechanisms for handling complaints and protecting whistleblowers in good faith; |
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XI - disciplinary measures in case of violation of the integrity program; |
XI - disciplinary measures in case of violation of the integrity program; |
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XII - procedures which ensure the prompt interruption of detected irregularities or infractions and the timely remediation of the damage generated; |
XII - procedures which ensure the prompt interruption of detected irregularities or infractions and the timely remediation of the damage generated; |
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XIII - appropriate due diligence for hiring and, as the case may be, supervising, third parties such as suppliers, service providers, intermediary agents, and associates; |
XIII - appropriate, risk-based due diligence for: a) hiring and, as the case may be, supervising third parties, such as suppliers, service providers, intermediary agents, freight forwarders, consultants, commercial representatives, and associates; b) hiring and, as the case may be, supervising politically exposed persons, as well as their family members, close associates and legal entities in which they participate; and c) execution and supervision of sponsorships and donations; |
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XIV - verification, during the processes of mergers, acquisitions and corporate restructuring, of the occurrence of irregularities or illicit acts, or of the existence of vulnerabilities in the legal entities involved; |
XIV - verification, during the processes of mergers, acquisitions and corporate restructuring, of the occurrence of irregularities or illicit acts, or of the existence of vulnerabilities in the legal entities involved; and |
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XV - continuous monitoring of the integrity program aimed at its improvement in preventing, detecting and combating the occurrence of the harmful acts set forth in Article 5 of Law No. 12,846 of 2013; and |
XV - continuous monitoring of the integrity program aimed at its improvement in preventing, detecting and combating the occurrence of the harmful acts set forth in Article 5 of Law No. 12,846 of 2013. |
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XVI - transparency of the legal entity regarding donations to candidates and political parties. |
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The importance given to the Compliance area's budget is notable in the amendments, with the proper and correct allocation of resources to the area, as well as for periodic communication on integrity in the companies.
Furthermore, it is clear that a risk analysis is not enough. With the new decree, efficiency in risk management and a necessary improvement in the management of third parties will be required, including new types of third parties, politically exposed persons, and care with sponsorships and donations.
The changes in the Decree also put an end to the practice of some companies that only have a Reporting Channel in the belief that they are in compliance, and that it is necessary to have mechanisms for handling these reports.
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