In the wake of the recent publication of the Decree 11,129/22, which amended the regulation of the Anti-Corruption Law, on 25 July, the Office of the Comptroller General ( (CGU) published the Normative Ordinance CGU 19/22, which brought specific rules on summary judgment in the context of administrative accountability proceedings (PAR) determined or avocados by the CGU.

According to the CGU, summary judgment is a negotiating sanctioning instrument, whose main objective is to stimulate the culture of integrity in the private sector, promoting express accountability for harmful acts committed against the Public Administration.

Summary judgment has certain requirements and, if accepted by the authority, may grant benefits to the legal entity that triggers it.

The request for summary judgment proposed by the legal entity must include the admission of objective responsibility for the practice of the harmful acts investigated, accompanied by evidence and detailed reporting of what is known.

In addition, the request for anticipation must contain the following commitments:

• repay the caused damage;
• lose the undue advantage (when it is possible to estimate);
• pay the fine of Art. 6 of the Anti-Corruption Law;
• respond to requests for information;
• do not file administrative appeals;
• waive the submission of a written defense;
• waive the right to file lawsuits relating to the PAR; and
• include suggestion on how and how to pay financial obligations (there is the possibility of proposing the installment payment).

At the federal level, the CGU, in a discretionary manner, may reject or agree to the request made by the legal entity. If the return is positive, the authority will prepare a final report, recommending the summary judgment, which will proceed to the final decision of the Minister of the CGU, preceded by legal manifestation of the legal advice department of the CGU.

Summary judgment can only be used for PARs already instituted and still pending final judgment. The degrees of benefit in the amount applied to the fine vary depending on the time the legal entity submits its proposal.

In this way, the following mitigations in the calculation of the fine can be applied:

• Before the beginning of the PAR (in the context of preliminary investigation) – mitigation of 4.5%
• Before the presentation of the written defense - attenuation of 3.5%
• Before the closing statements – attenuation of 2.5%
• After the closing statements - 1.5% mitigation

Summary judgment has characteristics very similar to those provided for in the leniency agreement – such as admission of strict liability, delivery of evidence and detailed reporting of what is known to the company, in addition to some differences highlighted below:

Given these two possibilities, it is important that the legal entity subject to some preliminary investigation or a PAR examines, according to the specific case, what is the most advantageous way: leniency agreement, summary judgment or follow the procedural flow of the PAR.

This reflection is necessary because, considering that Article 25, II, that of Decree 11.129/22 imposes a limit of three times the value of the advantage obtained to the fine imposed, in a hypothetical PAR scenario in which the fine calculated exceeds this limit, the mitigation of the summary judgment may be to make it innocuous. This is because even without the incidence of the reduction of the summary judgment, the fine would have already reached its maximum. In this case, opting for summary judgment or normal flow, the fine imposed would be the same – the amount of three times the advantage given.

In this scenario, in addition to the non-application of mitigating factors, the summary judgment would prevent the legal entity from, in the administrative sphere of the PAR and in potential judicial sphere, to discuss the facts and present its defense, since the summary judgment imposes the commitment not to appeal and give up related lawsuits.

These considerations and reflections are extremely relevant for legal entities involved in PARs in progress, because the normative ordinance established a deadline of 60 days for legal entities to make proposals for summary judgments in PARs already established and not yet judged. Considering that the normative ordinance comes into force on August 1, 2022, the deadline for the proposal, in these specific cases, expires on September 30, 2022.