On August 29, the Office of the Comptroller General (CGU) published in the Official Gazette CGU Normative Ordinance 155/24, which repeals CGU Normative Ordinance 19/22. The document entered into force on the date of its publication and is extremely important for the dynamics of compliance and the fight against corporate corruption in Brazil.

The ordinance addresses an issue that has long been debated in compliance environments: the possibility of resolving cases under the Anti-Corruption Law (Law 12,846/13) through a negotiation other than the leniency agreement.

As is known, the leniency agreements instituted by the Anti-Corruption Law represent an important legal figure for companies that seek the authorities for self-settlement. It happens that its execution requires specific requirements, such as the novelty of the confessed situation or the provision of new evidence, documents, or people related to the practice of the harmful acts.

Thus, there was a difficulty during cases in which the company was willing to collaborate but was faced with the fact the authorities themselves already had all the information on the crime.

Considering these cases, the CGU created in 2022 the instrument of early judgment through Normative Ordinance 19/22. This instrument allowed the company to make a self-settlement with the State in cases where a leniency agreement was impossible.

Despite being successful – 88 early judgments were requested from the CGU – the institute, however, has always presented some debatable points. The main one referred to the need for the company to assume guilt for the harmful act and to be effectively convicted of violation of the Anti-Corruption Law.

Conviction based on the Anti-Corruption Law is a huge problem for most large companies. Generally, their contracts with financiers, investors, customers, and even suppliers have clauses that stipulate serious consequences when there is this type of condemnation. Thus, even wanting to collaborate with the authorities, these companies had a great reason to litigate with the State and therefore avoid conviction or even postpone the final and unappealable decision.

The same occurs in the case of confession of misconduct since this confession could also mean – in addition to reputational crisis – a breach of contracts and other obligations assumed.

The new instrument published by the CGU deals precisely with these issues. In place of the early judgment, the CGU created the term of commitment. Like its predecessor, this document will not be signed when it is appropriate to enter into a leniency agreement. However, the request for the execution of a leniency agreement may be converted into a request for the execution of a settlement agreement through a request by the interested party.

In one of its most important provisions, the ordinance changed the dynamics of conviction, bringing the logic of the Brazilian anti-corruption law closer to the American one and the terms of adjustment of conduct entered into by the Public Prosecutor's Office, in which the celebrants are not convicted.

The new institute also eliminated the need for the company to confess and only provides that it recognizes that it is responsible for the fact investigated, changing the logic of a confession of conduct to an admission of strict liability. Although it seems like a subtle change, it can represent a lot of the indirect effects of the agreement.

In addition, the new ordinance deals with other relevant issues, such as the levels of fine reduction and the mitigation of restrictive sanctions for bidding and contracting with the government. It also provides for the possibility of the CGU conditioning the execution of the term of commitment to the requirement that the company commit to adopting, applying, or improving an integrity program.

The requests for early judgment that were still under analysis on the date of entry into force of the new ordinance were automatically converted into requests for the execution of a settlement agreement. The company may withdraw from the act within ten days from the publication of the ordinance.

Certainly, CGU Normative Ordinance 155/24 should become one of the most important instruments for companies involved with punitive proceedings under the Anti-Corruption Law.