Administrative and corporate improbity: new paradigms
Article in Correio Braziliense, on 25/06/2020, on new paradigms of administrative and corporate improbity, citing Law 13,655/2018 (LINDB).
Translated from the original.
Fábio Medina Osório*
In Brazil and around the world, legislation has been refined to strengthen the fight against corruption. Law 13,655, of April 25, 2018, for example, known as the Introductory Law to the Rules of Brazilian Law, brought concepts that substantially impact other rules, above all the administrative improbity and corporate improbity laws.
The Law of Introduction is what is called a “norm about norms,” that is, it determines how other laws are to be understood and applied. In this sense, it applies to all Brazilian laws, but here we will deal specifically with two of them, which are of great importance to companies and public officials. Indeed, the Administrative and Corporate Improbity Laws (Laws 849/92 and 12,846/13) repress corruption, unlawful enrichment and endemic inefficiency or disorganization of public and private sectors.
In order to avoid arbitrariness and subjectivism on the part of accusers and judges in the face of due process, actions based on these norms must contain detailed descriptions of the prohibited conduct and of the case law. There is no longer room for the whims of accusers, nor for arbitrary techniques of resorting to excessively vague and ambiguous concepts in classifying prohibited behavior.
One of the novelties of the Introductory Law is the requirement that decisions issued in punitive proceedings take practical consequences into account and not rest on abstract values. To a certain extent, there is a need for concrete reasoning, devoid of presumptions. Damage to the Treasury therefore cannot merely be presumed as a consequence of certain conduct. It is essential that the Public Prosecution Service point out and demonstrate the harm, scientifically grounded.
Another change concerns fault by gross error, something we had advocated for years in our work Theory of Administrative Improbity, the fruit of a doctorate supervised by Eduardo García de Enterría at the Complutense University of Madrid, when we said that fault could only be admitted for gross or serious error. The new law fixes precisely the concept of fault based on the theory of gross error. One can speak of gross negligence in this scenario. Thus, there is a legally tolerable margin of error for public and private agents, which is why mere lack of skill cannot be classified as proof of improbity, nor can slight or very slight fault.
The Introduction Law was regulated by Decree 9,830, of 10 June 2019, addressing requirements for the reasoning of judicial or administrative decisions. Once again, revealing the importance and influence of the Common Law culture in our system, the decision is required to spell out the norms, the legal interpretation, the case law or the scholarship on which it was based.
According to the case law of the higher courts, there is an unequivocal link between improbity actions and administrative sanctioning law, a legal regime that we have defended as applicable to these actions since 1999. By virtue of Law 13,964/19 (Anti-Crime Law), plea cooperation and a conduct adjustment agreement are admitted in improbity actions, by means of the civil non-prosecution agreement, showing the influence of criminal law on administrative sanctioning law.
Criminal principles therefore apply, by symmetry and with nuances, to the sphere of administrative sanctioning law. It is time to rescue for possible agreements countless administrative improbity actions pending in the Brazilian courts, many of them doomed to failure and many others marked by extreme arbitrariness and injustice.
* Lawyer, was AGU minister