Internal controls
| Autor | Michael Freitas Mohallem, Beto Vasconcelos and Guilherme France |
| Ocupação do Autor | Professor at FGV Rio Law School/Professor at FGV Rio Law School/Researcher at FGV Rio Law School |
| Páginas | 38-40 |
Transparency Internacional – Brazil38
INTERNAL CONTROLS
109 WONTROBA, B. G. O Conselho Fiscal nas empresas estatais, de acordo com a Lei nº 13.303/2016. In: JUSTEN FILHO, M. (org.) Estatuto jurídico das
empresas estatais. São Paulo: Revista dos Tribunais, 2016, p. 241.
110 IBGC. Boas Práticas de Governança Corporativa para Sociedades de Economia Mista. São Paulo, 2015, p. 27. Available at:
br/userfiles/2014/files/Arquivos_Site/Caderno14.PDF>. Accessed on: April 10, 2017.
Special mention must also be given to
SOEs’ Supervisory Board and to the Office of
the Comptroller General, as components of the
systems of prevention, detection and punishment
of acts that violate the ethics and integrity of
SOEs, exercising important control functions of
said companies.
The purpose of the Supervisory Board is to
supervise the administrators’ actions, ensuring
that business management meets the SOE’s
objectives. In said companies, it is mandatory
to have such a board, which must always be
operational. It is considered an independent control
and inspection body, as well as an important agent
in the company’s governance system.
In general, it can be said that it is up to the
Supervisory Board to express its opinion on matters
of interest to the company, suggesting changes,
when necessary, or pointing out any irregularities
found. The scope of its supervisory activity includes
checking for compliance with legal and statutory
obligations, but is not limited to just analysing and
examining financial statements, as it encompasses
the entire economic and financial situation of the
entity to which it pertains
109
. Board members must
act in harmony with other corporate governance
bodies, in particular the Audit Committee and
the internal auditing department, as such bodies
provide this Board with a continuous view of
business risks and weaknesses, as well as the
Company’s internal controls.
The SOEs Act eliminated any potential
questions about the mandatory nature of
the Supervisory Board’s functioning in SOEs.
Specifically in its article 13, IV, the Act established
that any law authorising the creation of a public
enterprise or mixed-capital company should also
provide for the constitution and operation of its
related Supervisory Board. Nevertheless, it did not
give a detailed explanation of the issue, preferring
instead to reference the Corporations Act (Law
No. 6,404/1976).
The composition of the Board must balance
the participation of controlling and non-controlling
partners. Once nominated, however, board
members should work autonomously from the
members who nominated them and secured their
election110. It is recommended to avoid political
party nominees and that the recruitment process is
transparent and rigorously based on characteristics
such as sound reputation, academic background,
experience in accountability and technical training
in areas relevant to the company’s activities and
its management, with adequate compensation.
The State-Owned Enterprises Act, however, did
not impose the same restrictions that it placed on
the appointment of administrators to the members
of the Supervisory Board, only signalling that
they should be “residents of the country, with
an academic background compatible with the
exercise of the function, having exercised, for a
minimum term of three (3) years, a management
or advisory position in the public administration,
or a position of supervising advisor or manager in
a company ” (article 26, paragraph 1).
Board members have the same duties as
the managers and are responsible for damages
resulting from oversights and shortcomings in the
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