The public consultation in Rio de Janeiro and the improvement of Decree 46,366/18: Reflections on Administrative Sanctioning Law

How can the adjustments to Decree 46,366/18 proposed by the Office of the State Attorney General of RJ contribute to transparency, a culture of probity and the fight against corruption? Read this exclusive article by Fábio Medina Osório, head of Medina Osório Advogados, published this Friday (06/12) on the Migalhas portal:

Medina Osório, for Migalhas: The public consultation in Rio de Janeiro and the improvement of decree 46,366/18: Reflections on Administrative Sanctioning Law

The head of Medina Osório Advogados analyzes the regulation of the Anti-Corruption Law in the State of Rio de Janeiro.

The public consultation in Rio de Janeiro and the improvement of Decree 46,366/18: Reflections on Administrative Sanctioning Law

Fábio Medina Osório

The State Attorney General's Office of Rio de Janeiro ordered on 2/12/24 the opening of a public consultation on the proposed amendment of decree 46,366/18. This rule, which regulates the application of Federal law 12,846/13, is at the center of the legal framework for holding legal entities liable for acts harmful to the Public Administration, and its revision seeks to incorporate advances in the face of contemporary challenges in fighting corruption and promoting integrity.

Formalized by PGE resolution 5,147/24, the initiative offers the opportunity to improve mechanisms for investigation, calculation of sanctions, and consensual instruments such as leniency agreements and the newly proposed APRs.

This text seeks to analyze the main points of innovation, highlighting the role of the APR – Agreement in the Accountability Proceeding as a complementary alternative to the Leniency Agreement, as well as advances in the calculation of fines, damage reparation, and integrity measures. In addition, innovations in transparency and publicity will be addressed, consolidating a detailed overview of the suggested transformations and their impact on Public Administration and on the fight against corruption.

1. The APR – Agreement in the Liability Proceeding

One of the most significant innovations proposed by the public consultation led by the Office of the Attorney General of the State of Rio de Janeiro is the introduction of the APR – Agreement in the Accountability Proceeding, which complements the normative system already consolidated by decree 46,366/18 and differs from the Leniency Agreement structurally and functionally.

1.1. The Leniency Agreement in decree 46.366/18

The Leniency Agreement, in decree 46,366/18, is a central instrument in combating corruption, encouraging the cooperation of legal entities involved in unlawful practices against the Public Administration. Entering into one requires compliance with strict requirements: being the first to express interest, immediately ceasing the unlawful conduct and presenting substantial evidence (art. 49).

In addition to reducing the fine by up to two thirds and excluding specific administrative sanctions, such as the extraordinary publication of decisions (art. 56), the agreement aims to dismantle corruption networks by identifying others involved, whether individuals or legal entities (art. 45).

1.2. The APR – Agreement in the Liability Proceeding in the text submitted for consultation

The APR, provided for in art. 34-A of the text under consideration, expands consensual solutions in Administrative sanctioning law by allowing the legal entity to acknowledge its liability and cooperate directly with the Public Administration. To this end, acceptance of strict liability, presentation of evidence, detailed description of the harmful acts and cessation of the unlawful practices are required.

With the opening of the APR, the limitation period is interrupted (Art. 34-B, §3), and the rejection or withdrawal of the agreement does not allow the documents submitted to be used against the party (Art. 34-C, §2). Its conduct is shared by the CGE – State Comptroller General’s Office and the PGE – State Attorney General’s Office, ensuring impartiality and technical rigor (Art. 34-B, §2). Breach of the APR entails the loss of the agreed benefits, a bar on new agreements for a period of three years and registration in the CNEP – National Registry of Punished Companies for an equal period (Art. 34-H, §§1 and 2). The APR innovates by balancing mechanisms of collaboration and accountability, establishing itself as an efficient tool of accountability and public integrity.

1.3 Comparison between the agreements

2. Calculation of fines and compensation for damages

Under the decree currently in force (46,366/18), the calculation of fines is directly tied to the legal entity’s gross revenue in the fiscal year prior to the start of the PAR – Administrative Accountability Proceeding, excluding taxes, as provided in art. 33, I. The maximum limit of the fine is 20% of gross revenue, and the minimum amount cannot be lower than the advantage obtained, when it is possible to estimate it. The seriousness of the offense, as well as the legal entity’s cooperation, are considered in applying aggravating and mitigating factors, but without rigorous detailing of the criteria or methodology.

With the amendment proposed in the 2024 decree, new criteria are introduced to give greater objectivity to the calculation. The link to gross revenue is maintained, but it is now detailed that the minimum amount will be the greater of the advantage obtained and 0.1% of gross revenue, and the maximum will be the lesser of 20% of gross revenue or three times the advantage obtained. For cases in which revenue cannot be determined, as provided in art. 40-A, the fine will be set between R$ 6,000.00 and R$ 60,000,000.00. In addition, art. 38-A specifies methodologies for calculating the advantage obtained or sought, including the deduction of proven lawful costs that would have been legitimate had the unlawful act not occurred.

3. Transparency and publicity

Under the decree currently in force, pursuant to art. 56, the transparency and publicity of condemnatory decisions are ensured through publication in official outlets, such as the Official Gazette, and, where applicable, in other widely circulated media. These measures ensure the formal disclosure of the results of the administrative liability proceeding, fulfilling the principle of accountability, but are limited to mandatory aspects, without broadly addressing integration with public registry systems or the sharing of information among bodies.

The proposed amendment to the decree introduces innovations in art. 34-C, §1 and §2, providing that the withdrawal or rejection of agreements, such as the APR, will not be publicly disclosed, ensuring procedural secrecy. On the other hand, for cases of noncompliance with sanctions or agreements, as established in art. 34-H, the record of penalties will be entered in the CNEP – the National Registry of Punished Companies, broadening the publicity of results and promoting greater access to relevant information by public bodies and by society. In addition, the decree reinforces coordination among administrative entities to ensure efficient and integrated communication about the penalties applied, contributing to a more transparent and accessible system. These changes broaden the mechanisms of disclosure and integrate publicity with technological instruments, promoting greater social control and administrative efficiency.

4. Integrity programs

The new text proposes, among other points, the inclusion of the obligation to adopt, apply or improve integrity programs as a requirement in administrative accountability agreements (art. 34-D, VI). It also provides direct incentives for companies that have integrity programs implemented prior to the commission of harmful acts, such as mitigating factors in the calculation of fines (art. 36, V and sole paragraph). Such measures not only reinforce legal entities’ commitment to higher ethical standards, but also promote greater predictability and transparency in the relationship with the public authorities.

5. Conclusion

The public consultation for the revision of Decree 46,366/18, conducted by Attorney General Renan Saad, is a demonstration of commitment to the constitutional principles that govern the Brazilian Public Administration. The proposed innovations, such as the APR, the reformulation of the calculation of fines and the strengthening of integrity programs, represent significant advances that align Rio de Janeiro with the best international practices in combating corruption.

This initiative reinforces the idea that the Public Administration must be modern, transparent, and participatory, ensuring consensual solutions that preserve the public interest and promote business ethics.