By Camillo Giamundo and Brenda Monticelli

Ten years after Law No. 12,846/13, the “anti-corruption law”, came into force, it is natural for critical discussions to arise aimed at improving its application. In recent months in particular, there has been a notable increase in the debate on the possibility and limits of reviewing leniency agreements entered into between companies and the signatory authorities, especially after Operation “Spoofing“, launched by the Federal Police in July 2019 to investigate and combat hacker activities involving the hacking of Brazilian authorities’ cell phones, which revealed a series of message exchanges indicating the use of unusual tactics for search and seizure of assets and persons, for the conduct of proceedings and for the conviction of those under investigation. In this scenario, it became apparent that leniency and cooperation agreements may have been signed under duress, which calls for their review and renegotiation.

In this context, it is crucial to consider whether, amid possible reviews of these agreements, the public interest — representing the collective dimension of individual interests — would continue to be respected or would end up subordinated to the private interests of the lenient companies.

To address this question, it is important to understand that the consensual nature of agreements between the public administration and interested parties does not imply a renunciation of the public interest in favor of the private interest. In fact, it represents a softening of the public administration’s purely sanctioning conduct through a dialogical approach, seeking to serve the public interest more efficiently. This is also the understanding of Gustavo Henrique Justino de Oliveira and Fernanda Santos Scharamm, who stress that “[i]n truth, the consensual route may provide a greater degree of certainty in achieving the public interest, insofar as it has the private party’s agreement to fulfill the obligations agreed upon”. [1]

It is also important to remember that it is through the consensual nature of the leniency agreement that the public entity, more quickly and effectively, obtains additional investigative information on acts that are difficult or impossible to identify, enabling important investigations and the fight against corruption to continue.

Therefore, considering that these agreements are performed over time, we come up against the need to preserve their consensual nature through the possibility of reviewing and renegotiating them, ensuring that these instruments remain proportionate, feasible and relevant until they are fully performed.

Renegotiation of agreements

The possibility of renegotiating the obligations set out in leniency agreements is outlined in article 54 of Decree No. 11,129/2022, which regulates the Anti-Corruption Law. This provision allows obligations agreed in the leniency agreement to be changed or replaced, provided the following requirements are met cumulatively:

• maintenance of the original results and requirements on which the leniency agreement was based;
• greater advantage for the administration, so that better consequences for the public interest are achieved than a declaration of non-compliance and termination of the agreement;
• unforeseeability of the circumstance giving rise to the request for modification or to the impossibility of meeting the originally agreed conditions;
• good faith of the cooperating legal entity in reporting the impossibility of fulfilling an obligation before its due date;
• soundness of the guarantees provided in the agreement.

Along the same lines, it is worth highlighting article 26 of the Law of Introduction to the Rules of Brazilian Law (LINDB), which serves as a reference for the public administration’s use of the consensual route and, in its §1, item I, provides that the commitment entered into through settlement with the administration must seek a legal solution that is proportionate, fair, efficient and compatible with the general interests. In our view, this legal solution is only effectively achieved if it is observed throughout the performance of the agreement, which becomes tangible through the possibility of readjusting these agreements.

On this basis, recognizing that the leniency agreement is a mechanism legitimized by the Brazilian legal system, whose purpose is to combat acts of corruption, it is reasonable to conclude that reviewing these agreements, also supported by Brazilian legislation, provides greater effectiveness and certainty for actually achieving the public interest.

Moreover, given the financial effects of leniency agreements and the serious consequences the economic development scenario has faced in recent years, it is imperative to use the openness to dialogue provided by the consensual route to maintain balance among the obligations established, ensuring that they are achievable.