STF is appealing the ruling on the 28th of this month regarding the renegotiation of the Lava-Jato Agreements | policy

In August the minister Andre MendonçaThe case rapporteur approved the agreement providing for renegotiation. The decision was submitted to the Supreme Court in the plenary session for the referendum, but the Minister Flavio Dino It requested a review (more time for analysis) and suspended judgment. The virtual analysis will continue until December 5.

The renegotiation proposal comes within the scope of the action presented by Psol, PCdoB and Solidaredade, which called for the cancellation of all agreements signed by Lava-Jato. The agreement approved by Mendonça benefits Odebrecht, Braskem, Andrade Gutierrez, Camargo Corrêa, Nova Engevix, Metha (formerly OAS) and UTC Engenharia.

Companies, with the exception of Braskem, will be able to deduct up to 50% of the outstanding balance of agreements initially approved by Lava-Jato using tax loss credits from corporate income tax (IRPJ) or the negative calculation basis of social contribution on net profit (CSLL).

Furthermore, the agreement provides for the exception of the applicable Administrative Offenses Law fine in addition to the Anti-Corruption Law penalty, when applied to the same facts; Exemption from penalties and interest on the outstanding balance; Change in the installment payment schedule to extinguish debts and compensate for amounts previously paid in administrative and judicial procedures.

“It is important to highlight that Articles 10 and 11, quater, of Law No. 13988 of 2020, expressly allow the use of IRPJ tax loss credits and the negative CSLL calculation basis for the payment of union credits, including those derived from the leniency agreement,” Mendonça said in the decision.

Mendonça stated that there is “no discount given to companies.” He adds that the renegotiation “only takes into account the readjustment of the payment schedule, taking into account the financial reality of the companies that emerged at the renegotiation stage.”

The Public Prosecutor’s Office (PGR) agreed to renegotiate. “The Public Prosecutor’s Office is aware that if the Federal Supreme Court approves the criteria for the renegotiation conducted by the Union, the terms of which were the subject of analysis in a confidential statement from the PGR submitted to the Court on the same date, the reconciliation for which the claim was submitted will have been fulfilled,” the authority said in a statement sent to the STF.

In his vote, Mendonça recognized that there had been no widespread violation of human rights regarding the practices of the Federal Public Ministry (MPF) during the negotiations on the leniency agreements, and therefore rejected the request for recognition of the “unconstitutional state of affairs.”

The Minister also explained that the Comptroller General of the Union (CGU) is primarily responsible for concluding agreements at the federal level, but the Attorney General of the Union (AGU) and the MPF can make amendments of a civil nature.

Oversight of agreements is the responsibility of the judiciary. Regarding accounting courts, they are entrusted with the task of investigating damage to the public treasury, not reviewing signed agreements.

Finally, the Minister proposed seven theses to guide future agreements. The proposal specifies the responsibilities of the various institutions participating in the negotiations, how penalties will be applied, and the destination in which fines will be collected.

Below, the theses proposed by André Mendonça

1. State actions penaltywhether in the administrative or judicial, negotiating or contentious field, is subject exclusively to Control of the judiciary;
2. Leniency agreements They do not bind the procedures of audit courts, which can only investigate damages resulting from wrongful acts recognized by the company in the agreements;
3. Accounting courts They may access information and incriminating elements provided by companies in liability verification agreements for individuals and legal entities involved in illegal acts, as long as they commit to using them only to investigate possible harm to the treasury;
4. CGU unit He is responsible for signing Agreements Of leniency under Federal executive authorityLikewise in the case of acts committed against foreign public administration. The body may work with AGU and MPF;
5. AGU and MPF You will be able to sign Civil agreements With companies to avoid or terminate the procedures under the Anti-Corruption Law and the Administrative Corruption Law;
6. issue CGU, AGU and MPF Entering into separate agreements, and Negotiated values In each case, if they are of the same nature and relate to the same facts, They must compensate;
7. Agreed values The agreements indicate a fine, which is the amount necessary to fully compensate for damages and losses to the product or unjust enrichment.