STF resumes judgment on renegotiation of Raba Jat agreement on 28th | Policy

In August, the Minister Andre Mendonçathe rapporteur in this case approved an agreement providing for renegotiation. This decision was put to a referendum in the plenary session of the Supreme Court, but the Minister Flavio Dino Requested reconsideration (more time for analysis) and reserved judgment. The virtual analysis will run until December 5th.

The renegotiation proposal comes within the scope of a lawsuit filed by Psol, PCdoB and Solidaredade, which seeks the annulment of all agreements signed by Lava-Jato. The agreement approved by Mendonça will benefit Odebrecht, Braskem, Andrade Gutierrez, Camargo Correa, Nova Engevix, Meta (formerly OAS) and UTC Engenharia.

Companies, excluding Braskem, will be able to deduct up to 50% of the outstanding balance of contracts originally approved by Lava-Jato using loss deductions from corporate income tax (IRPJ) or social contribution to net profit (CSLL) negative calculation basis.

Additionally, the agreement provides for the exclusion of administrative fraud law fines that apply in addition to anti-corruption law sanctions when applied to the same facts. Waiver of penalties and interest on unpaid balances. Modification of installment payment schedules for debt repayment and compensation of amounts already paid in administrative and judicial proceedings.

“It is important to emphasize that Article IV, Articles 10 and 11 of Law No. 13,988 of 2020 expressly permit the deduction of IRPJ losses and the use of a negative CSLL calculation basis for the payment of federated credits, including those derived from leniency agreements,” Mendonça said in the decision.

Mendonsa said he did not “give any discounts to businesses.” He said the renegotiations “only considered readjusting the payment schedule, taking into account the company’s financial realities as presented at the renegotiation stage.”

The Attorney General’s Office (PGR) agreed to renegotiate. “The Attorney General’s Office understands that if the U.S. Supreme Court approves the terms of the renegotiation undertaken by the Commonwealth, the terms were subject to analysis in a confidential statement from PGR sent to the Court on the same date,” the agency said in a statement to the STF.

During his vote, Mr. Mendonça understood that there were no widespread human rights violations related to the practices of the Federal Ministry of Public Affairs (MPF) during the negotiation of the leniency agreement, and therefore rejected the request to find an “unconstitutional status quo.”

The Minister also defined that the Comptroller General of the Federation (CGU) is primarily responsible for concluding agreements at the federal level, while the Attorney General of the Federation (AGU) and the MPF can make civil arrangements.

The administration of agreements is the responsibility of the judiciary. In relation to the Board of Audit, it has been entrusted with the task of investigating damage to the national treasury, but not with the task of reviewing signed contracts.

Finally, Ministers proposed seven themes to guide future agreements. The proposal sets out the responsibilities of various institutions involved in negotiations, how sanctions will be applied and where fines will be collected.

Below is a paper proposed by Andre Mendonça.

1. national action sanctionswhether in the administrative or judicial field, whether during negotiations or disputes, shall be subject exclusively to the following provisions: judicial control;
2. leniency agreement These do not bind the actions of the Audit Court, which can only investigate damages resulting from illegal acts acknowledged by the company in the contract.
3. court of accounts We can access information presented by companies in contracts and elements of convictions to verify the liability of individuals and legal entities involved in illegal activities, as long as we undertake to use the information solely to investigate possible damage caused to the Treasury.
4. C.G.U. is responsible for signing agreement leniency based on federal executive branchThe same applies to acts against foreign governments. The unit may work in conjunction with AGU and MPF.
5. AGU and MPF you can sign it civil agreement Cooperate with businesses to avoid or stop conduct as specified in the Anti-Corruption Act and the Administrative Misconduct Act.
6. case CGU, AGU and MPF When entering into a separate contract, negotiated values If in each case they are of the same nature and relate to the same facts, they have to compensate;
7. agreed value This contract refers to a fine, which is the amount necessary to fully compensate for damage and loss of products or ill-gotten gains.