On Wednesday, February 21, 2024, the Federal Court of Accounts (Tribunal de Contas da União, “TCU”) approved a new normative instruction regulating joint actions of the TCU and the Office of the Comptroller General of the Federal Government (Controladoria-Geral da União, “CGU”) in the negotiation of leniency agreements.
The regulation is the result of a technical cooperation agreement, signed in 2020 between the TCU, the CGU, the Office of the Attorney General of the Federal Government (Advocacia-Geral da União, “AGU”), and the Ministry of Justice and Public Security (Ministério da Justiça e Segurança Pública). It aims to establish clear criteria for TCU's participation in leniency agreements, especially those regarding the assessment of damages to the public Treasury, as well as limiting TCU's ability to impose additional sanctions, beyond those agreed upon in the collaborative agreement signed with the CGU/AGU.
Since the creation of leniency agreements—and especially with the advancement of high-profile investigations into wrongdoings involving the Federal Public Administration—the sheer number government agencies, each with their own investigative and sanctioning powers and prerogatives, has caused considerable legal uncertainty for companies entering into settlement alternatives—such as leniency agreements—subjecting them to the risk of overlapping sanctions, despite their collaboration efforts and the terms agreed upon with the State.
Within the scope of the TCU, the issuance of the Normative Instruction represents a significant advancement in efforts to streamline the administrative-sanctioning prosecution system. Recently, the TCU revised its own caselaw to account for CGU actions, with regard to the enforcement of its own punitive decisions. These new precedents were achieved in administrative defenses sponsored by Tauil & Chequer.
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Founded in 2001, Tauil & Chequer Advogados is a full service law firm with approximately 90 lawyers and offices in Rio de Janeiro, São Paulo and Vitória. T&C represents local and international businesses on their domestic and cross-border activities and offers clients the full range of legal services including: corporate and M&A; debt and equity capital markets; banking and finance; employment and benefits; environmental; intellectual property; litigation and dispute resolution; restructuring, bankruptcy and insolvency; tax; and real estate. The firm has a particularly strong and longstanding presence in the energy, oil and gas and infrastructure industries as well as with pension and investment funds. In December 2009, T&C entered into an agreement to operate in association with Mayer Brown LLP and become "Tauil & Chequer Advogados in association with Mayer Brown LLP."
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This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.
