1. Bribery in the home (private to public)
1.1 The Legal Environment
Bribery of public officials is punishable in Brazil by both individuals and legal entities.
Bribery of public officials is prohibited by Article 333 of the Brazilian Criminal Code (Decree Law No. 2,848). In Brazil, only individuals are criminally liable for bribery. Legal entities are subject to court and administrative sanctions under the Brazilian Anti-Bribery Law (Law No. 12,846/2013). For both national and international public administration, the Brazilian Anti-Bribery Law outlaws not only acts of corruption, but also fraud in public procurement.
1.2 What does bribery mean?
The crime of Active Bribery is described in the Brazilian Criminal Code as offering or promising an undue advantage to a public official in order to influence him or her to perform, conceal, or delay an official act within the scope of his or her duties.
It is illegal to promise, offer, or give an undue benefit to a national or foreign public official, or a third person associated to them, directly or indirectly, according to the Brazilian Anti-Bribery Law.
1.3 What does it mean to be a public official?
A “government official” is defined in Article 327 of the Brazilian Criminal Code as “any individual who delivers services in governmental agencies or institutions, even on a temporary basis or without compensation, and performs a public function, employment, or office.”
1.4 Bribery’s Consequences
(a) In the case of the people involved
Individuals who commit acts of corruption in Brazil may face fines and up to 12 years in prison, according to the Brazilian Criminal Code.
(a) For the corporation/legal entity
Legal entities can face administrative and court penalties under the Brazilian Anti-Corruption Law.
Judicial: I Prohibition from receiving incentives, subsidies, grants, donations, or loans from public agencies or entities, as well as public financial institutions or institutions controlled by the government, for a period of up to five years; (ii) loss of assets, rights, or valuables representing the advantage or profit obtained, directly or indirectly, from the wrongdoing; (iii) partial suspension or interdiction
1.5 Contributions from politics
Individuals can make political contributions in an amount that does not exceed 10% of their gross income, according to Law No. 9504/97. Companies may also make contributions to candidates or political parties in the amount of up to 2% of their gross turnover in the year preceding the election under Law No. 9,504/97. However, with Law No. 13,165/2015, this clause was repealed, and corporations are no longer able to make political contributions.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
Brazilian law does not set a limit on the amount of money spent on hospitality for government employees. However, there is a Code of Conduct for High-Level Administration, which offers a set of norms and ethical standards that some government officials must follow. This law only applies to government officials and not to private businesses, but it is valuable in establishing explicit limits for determining the acceptability of gifts, hospitality, and entertainment directed at a public official. Government officials are prohibited from accepting gifts or other benefits from any individual or company that: I is subject to the regulatory jurisdiction of the agency for which the government official works; (ii) has any personal, professional, or corporate interest with the government official; or (iii) maintains a business relationship with the government official, according to the code of conduct.
Government officials may also receive minor free presents donated for advertising or to commemorate historical and cultural events, according to the code of conduct. The free present from the same company’s commercial worth cannot exceed BRL 100 each year. Furthermore, its distribution must be broad (i.e., not limited to a single government official), and the present must not be given to the same government official more than once every 12 months.
2. Bribery in the home (private to private)
2.1 Legal Framework
In Brazil, private bribery is not prohibited by law.
2.2 What is bribery in the private sector?
Bribery in the private sector is not prohibited under Brazilian law.
2.3 Private bribery’s ramifications
Bribery in the private sector is not prohibited under Brazilian law.
2.4 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
The law in Brazil does not set any limits on the amount of money that can be spent on hospitality between private parties.
3. Foreign public officials that are corrupt
3.1 The Legal Environment
Bribery of foreign public officials in Brazil is punishable by both individuals and legal entities.
Bribery of foreign public officials is prohibited by Article 337-B of the Brazilian Criminal Code (Decree Law No. 2,848) for individuals, and under Law No. 12,846/2013 for legal entities. The Brazilian Anti-Bribery Law not only forbids acts of corruption, but also fraud in public tenders, for both domestic and international public administration.
3.2 Definition of foreign public officials’ corruption
An individual who offers or promises undue advantage to a foreign public official, or to a third party, in order to influence him to perform, hide, or delay an official act related to an international commercial transaction is guilty of Active Bribery in International Commercial Transaction, according to the Brazilian Criminal Code.
It is illegal to promise, offer, or grant an undue benefit to a national or foreign public official, or a third person associated to them, directly or indirectly, under the Brazilian Anti-Bribery Law.
3.3 Explanation of the term “foreign public official”
Foreign public officials are those who hold a public position, job, or office in a foreign government agency or entity, or in diplomatic representations of a foreign country, as well as in legal entities controlled, directly or indirectly, by the government of a foreign country, or in international public organizations, even if temporarily and without compensation.
According to Law No. 12,846/13, foreign public administration includes public agencies and entities, diplomatic representations of a foreign country at any level or sphere, and legal entities controlled, directly or indirectly, by the government of a foreign country, as well as international public organizations.
3.4 The Consequences of Foreign Public Official Corruption
(a) In the case of the individuals involved
Individuals who commit acts of corruption in international economic transactions can face a fine and up to eight years in prison under the Brazilian Criminal Code.
(b) For the business or legal entity
Legal entities can face administrative and court penalties under the Brazilian Anti-Bribery Law.
Administrative: I fine ranging from 0.1 percent to 20% of gross income in the year preceding the start of administrative procedures; if such criteria cannot be applied, the fine will range from BRL 6,000 to BRL 60 million; and (ii) publication of the condemnatory decision.
Judicial: I Prohibition from receiving incentives, subsidies, grants, donations, or loans from public agencies or entities, as well as public financial institutions or institutions controlled by the government, for a period of up to five years; (ii) loss of assets, rights, or valuables representing the advantage or profit obtained, directly or indirectly, from the wrongdoing; (iii) partial suspension or interdiction (iv) the legal entity’s compulsory dissolution.
3.5 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
There is no limit on the amount of hospitality given to government officials in Brazil, and there is no minimum amount authorized. Depending on the context, any quantity can be considered corrupt.