On August 5, 2020, the Brazilian Federal Court of Accounts (Tribunal de Contas da União – “TCU”) approved a Technical Cooperation Agreement (Acordo de Cooperação Técnica – “ACT”) on anti-corruption issues. The ACT was executed by the General Comptroller’s Office (Controladoria-Geral da União – “CGU”), the Federal Attorney General’s Office (Advocacia-Geral da União – “AGU”), and the Ministry of Justice and Public Safety (Ministério da Justiça e Segurança Pública – “MJSP”), under the coordination of the Federal Supreme Court, and, it aims to establish the procedures for joint action for the public agencies to fight corruption, especially in relation to leniency agreements.
The ACT aims to promote effective interaction between the authorities involved in the execution of leniency agreements, promoting the mutual sharing of information and an efficient setting of the final amount of the damage to the public treasury, which will be considered in the leniency payment schedule. The joint action provided for in the ACT considers the attributes and limitations of each authority and their powers.
In accordance with the provisions of the Brazilian Anti-Corruption Law, the ACT establishes that the negotiations held within the framework of leniency agreements will be conducted by the CGU and the AGU, which must share the information obtained with the TCU when there is harm to the public treasury and when areas within its authority are being investigated. However, in any case, the CGU and the AGU do not need the TCU’s approval to sign the leniency agreement.
After the execution of the leniency agreement, the CGU and the AGU will share the information and documents provided by the company with the other authorities involved in the fight against corruption, who will not hold the company liable for the facts already covered in the leniency agreement.
The cooperation between authorities in a corruption case consists, in essence, in the sharing of information — as long as the sharing does not harm the investigation — with the other ACT signatory authorities, who must adopt the appropriate measures and actions regarding the investigation of the facts and the accountability of the individuals and legal entities mentioned in the leniency agreement.
Finally, it is important to note that the Federal Prosecution Office (Ministério Público Federal – “MPF”) has not yet signed the ACT and has chosen to submit the decision to become a party in the cooperation agreement to the 5th Coordination and Revision Chamber (5ª Câmara de Coordenação e Revisão – “5CCR”) related to the fight against corruption. The recommendation of the 5CCR was for MPF not to sign the ACT under the proposed terms because the 5CCR believes that the ACT would limit the power of several authorities and would not foster cooperation between them. Moreover, for the 5CCR, the ACT unconstitutionally limits the role of the MPF in combating corruption since the ACT determines that the MPF’s role is restricted to the criminal investigation of individuals mentioned in the leniency agreement, while the liability of legal entities would be under the responsibility of the CGU and the AGU.