On April 12, 2023, Brazil’s Office of the Comptroller General (CGU) launched an electronic tool with the purpose of facilitating the fine calculation of the Brazilian Clean Companies Act – BCCA (Law No. 12.846/2013). The fine is set forth by Article 6 of the BCCA, ranging from 0.1% to 20% of a company’s gross revenues in the last fiscal year prior to the filing of the administrative proceeding. In the federal sphere, the fine must also be assessed considering certain maximum and minimum amounts established by Decree No. 11,129/2022, which have already been incorporated in the calculator. Although the calculator focuses on companies that are responding to Administrative Proceeding for Liability (PAR), CGU has already announced that it intends to make the tool available for leniency agreements as well.
Some of the benefits for using the calculator are: the inclusion of legislative updates for the calculation; the possibility to calculate indexed amounts according to the Extended National Consumer Price Index (IPCA) and; the incorporation of rules applicable to the summary judgment (a consensual sanctioning tool recently introduced by CGU, as per Normative Ordinance No. 19/2022 – updated by Normative Ordinance No. 54/2023).
The information that must be fulfilled to determine the amount of the fine is divided into three distinct fronts:
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parameters of Decree No. 11,129/2022, which include information on the year of the establishment of the PAR, year of last gross revenue, calculation basis, undue obtained advantage, and undue intended advantage;
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aggravating factors, according to Article 22 of BCCA; and
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mitigating factors, according to Article 23 of BCCA.
After fulfilling the information previously mentioned, the calculator automatically generates the minimum and maximum fine limits and the final amount of the fine in a scenario with and without a summary judgment. In relation to the summary judgment, it is only necessary to complete the stage in which the proceeding is. The options are already defined by the calculator itself (before the initiation of the PAR; until the deadline for presentation of the written defense; until the deadline for presentation of final allegations; and after the deadline for presentation of final allegations).
It is important to note that the calculator is only applicable to CGU proceedings, as it takes into account provisions of Decree No. 11,129/2022, which does not correspond to state legislation, and calculations relating to summary judgment, a tool introduced and made available only by CGU.
The calculator can be accessed through the link https://epad.cgu.gov.br/Publico/calculadora/calcPAR.html.
