Provisional Measure No. 2,055-3, Of 9 November 2000

Original Language Title: Medida Provisória nº 2.055-3, de 9 de Novembro de 2000

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PROVISIONAL MEASURE NO. 2.055-3, OF November 9, 2000.

Altera and adds devices to the Law No. 8,884 of June 11, 1994, which transforms the Administrative Council of Defense Economic-CADE in autarchy, has on the prevention and suppression of the infractions against the economic order, and gives other arrangements.

THE PRESIDENT OF THE REPUBLIC, in the use of the attribution that confers it on art. 62 of the Constitution, adopts the following Provisional Measure, with force of law:

Art. 1º The arts. 2º, 26, 30, 35 and 53 of the Law No. 8,884 of June 11, 1994, go on to invigorate with the following essay:

?Art. 2º ....................................................................................................................................

§ 1º Rebiter-domiciled in the National Territory the foreign company that operates or has in the Brazilian branch, agency, branch, office, establishment, agent or representative.

§ 2º The foreign company will be notified and subpoenaed of all procedural acts, regardless of proxy or disposition contractual or statutory, in the person of the person responsible for its branch, agency, branch, establishment or office installed in Brazil.? (NR)

?Art. 26 ....................................................................................................................................

§ 1º The amount set for the daily fine of which treats the caput of this article will build on the document that contains the requisition of the competent authority.

§ 2º The fine provided for in this article will be computed daily to the limit of ninety days counted from the date set out in the document referred to the preceding paragraph.

§ 3º Compete to the requesting authority the application of the fine provided for in the caput of this article.

§ 4º Respond severally to the payment of the fine of which it treats this article, the branch, branch, office or establishment, in the Country, of foreign enterprise.

§ 5º The unwarranted lack of the represented or third parties, when subpoenaed to provide oral clarifications, in the course of procedure, of preliminary enquiries or administrative proceedings, will subject the missing to the 500 a to 10,000 UFIR mule, as per its economic situation, which will be enforced upon self-infringement by the requisite authority.? (NR)

?Art. 30. SDE will promote preliminary enquiries, of trade or in the view of written and reasoned representation of any interested, when the evidence of infraction to the economic order is not sufficient to initiate administrative proceedings.

§ 1º In the preliminary enquiries, the Secretary of the SDE will be able to adopt any of the arrangements provided for in the arts. 35, 35-A and 35-B, including requiring clarifications from the represented or third parties, in writing or in person.

...........................................................................................................................................................

§ 3º Preliminary enquiries will be able to run under secrecy, in the interest of the investigations, at the discretion of the Secretary of the SDE?. (NR)

?Art. 35. The period of submission of the defence, the SDE shall determine the conduct of due diligence and the production of evidence of interest of the Registry, to be submitted within fifteen days, and we provide it with the provision of the powers of instruction provided for in this Act, maintaining, legal secrecy when it is the case.

§ 1º The representations and evidence determined by the SDE Secretary, inclusive of witness reporting, shall be completed within forty five days, extended by equal period in case of justified need.

§ 2º Respected the object of preliminary enquiries, of procedure or administrative procedure, is incumbent upon the Secretary of the SDE to authorize, upon reasoned dispatch, the conduct of inspection at the registered office, establishment, office, branch office or branch of company investigated, notifying you of inspecting at least twenty-four hour in advance, and no diligence may begin before six or after the eighteen hours.

§ 3º In the hypothesis of the preceding paragraph, stocks, objects, papers of any nature, as well as commercial books, computers and magnetic files may be inspected, and may be extracted or request copies of any documents or electronic data.? (NR)

?Art. 53. ..................................................................................................................................

...........................................................................................................................................................

§ 5º The provisions of this article do not apply to the infractions to the economic order relating to or arising from the conducts provided for in the incisions I, II, III and VIII of the art. 21 of this Law.? (NR)

Art. 2º Law No. 8,884, of 1994, passes on increased invigoration of the following articles:

?Art. 26-A. Preventing, obstructing or otherwise hindering the carrying out of inspection authorized by SDE or EEAS in the framework of preliminary fact-finding, procedure or administrative procedure shall subject the inspectorate to the payment of fine of R$ 21,200.00 (twenty one thousand and two hundred reais) to R$ 425,700.00 (four hundred and twenty-five thousand and seven-hundred reais), as per the economic situation of the offender, upon the lavrature of self-infringement by the competent Registry.? (NR)

?Art. 35-A. The Advocate-General of the Union, by request of SDE, may apply to the Judiciary Judiciary warrant for the search and seizure of objects, roles of any nature, as well as of commercial books, computers, and company or person magnetic files physics, in the interest of the instruction of the procedure, of the preliminary enquiries or of the administrative procedure, applying, in what couber, the provisions of the art. 839 and following of the Code of Civil Procedure, being inchargeable to the purposeful of main action.

§ 1º In the course of administrative procedure intended to instruct representation to be forwarded to the SDE, may the EEAS exercise, in the that couber, the competences provided for in the caput of this article and in the art. 35 of this Act.

§ 2º The administrative procedure of which it treats the preceding paragraph could run under secrecy, in the interests of the investigations, at the discretion of the EEAS.? (NR)

?Art. 35-B. The Union, through SDE, will be able to conclude leniency agreement, with the extinction of the punitive action of the public administration or the reduction of one to two thirds of the applicable penalty, under this article, with physical and legal persons who are infringement authors to the economic order, as long as they collaborate, effectively with the investigations the administrative process and that of this collaboration results:

I-the identification of the remaining co-authors of the infraction; and

II-the obtaining of information and documents proving the infraction reported or under investigation.

§ 1º The provisions of this article shall not apply to the companies or physical persons who have been at the forefront of the conduct held as an infractionary.

§ 2º The agreement that treats the caput of this article can only be celebrated if filled, cumulatively, the following requirements:

I-the company or physical person is the first to qualify with respect to the reported infraction or under investigation;

II-the company or physical person completely cede its involvement in the reported infraction or under investigation as of the date of purposeful of the agreement;

III-the SDE does not have sufficient evidence to ensure the conviction of the company or physical person when from the purposeful of the agreement; and

IV-the company or physical person confesses its participation in the illicit and co-operate fully and permanently with the investigations and administrative process, attending, under his or her expense, whenever requested, to all procedural acts, until its closure.

§ 3º The agreement of leniency firmed with the Union, through SDE, will stipulate the conditions necessary to ensure the effectiveness of the collaboration and the useful outcome of the process.

§ 4º The celebration of leniency agreement not subject to the approval of the CADE, however, will compete, however, when the trial of the administrative process, verified compliance with the agreement:

I-enact the extinction of the punitive action of the public administration in favour of the offender, in the hypotheses in which the proposed agreement has been submitted to the SDE without such having prior knowledge of the reported infraction; or

II-in the remaining hypotheses, reduce from one to two thirds the applicable penalties, observed the provisions of the art. 27 of this Law, and shall still consider in the graduation of the penalty the effectiveness of the collaboration provided and the good faith of the offender in the fulfillment of the leniency agreement.

§ 5º In the inciso II hypothesis of the preceding paragraph, the penalty on which will focus on the reducing factor will not be higher than the lesser of penalties applied to the remaining co-authors of the infraction, regarding the percentage set for application of the fine of which it treats the art. 23 of this Act.

§ 6º Will be extended the effects of the leniency agreement to the directors and administrators of the empowered company, involved in the infraction, provided that they confirm the respective instrument in conjunction with the company, respected the conditions imposed in the incisies II to IV of § 2º of this article.

§ 7º The company or physical person who does not obtain, in the course of investigation or administrative process, habilitation for the conclusion of the agreement that treats this article, will be able to conclude with SDE, up to the shipment of the proceedings for trial, leniency agreement relating to another infraction, from which it has no prior knowledge to the Registry.

§ 8º In the hypothesis of the previous paragraph, the offender will benefit from the reduction of a third of the penalty applicable to him in that proceeding, without prejudice to the attainment of the benefits of which it treats the inciso I of § 4º of this article in relation to the new infringement denounced.

§ 9º It is considered to be sensitive to the proposed agreement that it treats this article, save in the interest of investigations and the administrative process.

§ 10. It will not matter in confession as to the matter of fact, nor recognition of ilicitude of the conduct analyzed, the proposal for leniency agreement rejected by the SDE Secretary, of which no disclosure is made.

§ 11. Will the application of the provisions of that article observe the regulation to be edited by the Minister of State for Justice? (NR).

Art. 3º As of 1º January 2001, the Procedural Rate of which treats the inciso I of the art. 5º of Law No. 9,781 of January 19, 1999, will be due in the amount of R$ 45,000.00 (forty-five thousand reais), redeparting the proceeds of its fundraising on the basis of one third for each of the following organs:

I-Council Administration of Economic Defense-CADE;

II-Secretary of Economic Law of the Ministry of Justice;

III-Secretary of Economic Monitoring of the Ministry of Finance.

Art. 4º Ficam convalidated the acts practiced on the basis of the Provisional Measure No. 2.055-2, of October 11, 2000.

Art. 5º This Interim Measment takes effect on the date of its publication.

Brasilia, November 9, 2000; 179º of Independence and 112º of the Republic.

FERNANDO HENRIQUE CARDOSO

José Gregori

Pedro Malan