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With the amendment of the Criminal Code (approved through the Organic Law 2/2010, June 22th, which came into force in December 23th, 2010), it is possible that the legal entities commit crimes (not only their Directors and Managers). In the practice, the companies started to introduce an effective Corporate Compliance Program in order to avoid the criminal liability derived from the commission of crimes. The implementation of the referred program implies for the company the knowledge and compliance of the criminal Law provisions.

In addition to the above, in 2015 the Criminal Code was once again amended (Lay 1/2015, March 31th) in order to expand the criminal liability of legal entities (art. 31 bis).

¿What does the effective Corporate Compliance Program imply to the Company?

The advantages of the Corporate Compliance Program are to prevent criminal risks, mitigate the liability, or even absolve the company of criminal liability.

It is essential the application of good governance. Thanks to the implementation of an effective Corporate Compliance Program the company may avoid crimes as well as the imputation or the sentencing of the company, its directors and administrators. Furthermore, the program constitutes an effective tool to improve the integration of each worker of the company.

A customized program implies the development of good practices and a risk prevention process, according to the company activity. In relation to its implementation may be necessary to take the following measures in different areas:

  • Analysis on criminal risks: To evaluate and to determine the crimes and its probability of being committed. This, depends on the activity of the company. The analysis may establish the internal control to avoid the comission of the crime.
  • Labour and environmental risks: Accidents suffered by visitors of workers of the company. The Law firms specialized in Corporate Compliance have professional experts who elaborate programs focused on security and environmental risks prevention to avoid unnecessary criminal risks.
  • Ethical codes: It is the way to reflect the identity and values of the company. The worker must to know all of them.
  • Reaction measures: It is important to act since the 0 minute, which means to act through the implementation of programs to prevent crimes or breaches of the Law.
  • Due diligence: To analyze the whole Company including partners, clients and/or suppliers.
  • Training of workers: To let them know about the current legislation and consequently they will be prepared to comply with it.
  • Channels for complaints (whistleblowing): with all security and confidentiality measures to those people who inform regularly. It implements the channel for complain by phone or any other communication system.

The Implementation of an effective Corporate Compliance Program

To implement an effective Corporate Compliance Program, it is necessary:

  • To create an administrative body with autonomous powers of initiative and control, including supervision measures to prevent crimes.
  • To identify which activities of the Company may constitute a crime.
  • To implement programs and action measures that point out the will of the company (to adopt and carry out decisions)
  • To implement management models focused on the financial resources.
  • To inform to the supervisión body of actions that involve risks and the non-compliance of the legislation.
  • To establish a sanction system for those who breach the measures fixed in the model.

It is important to evaluate periodically the model and its amendments and more carefully when changes in the organization, its activities, or control structures are produced.

Corporate Compliance stages

  • Risks evaluation

It is a technical study which aim is to detect situations that may represent a breach of the current legislation (criminal risks for the company and its administrators)

The risk evaluation also includes the analysis of previous programs implemented by the company, in areas such as, data protection, money laundry or prevention of environmental and labour risks.

In this first stage, a person who directs the compliance of the program  should be appointed.

  • Implementation of the program

In this stage, all the company workers must to be informed and they will get a General Conduct Code and the instructions to comply with its provisions. A body control must be appointed to ensure the compliance of the referred the code (compliance officer).

In addition, it is essential to establish and to make known, according to the current labour legislation, the disciplinary measures for those who breach the program.

Auditing and continuos training

The last stage, has the main aim of keeping the program properly updated. It is also important to evaluate the results and the effectivity of the corporate compliance program.

Jose María Dutilh

Jose María Dutilh

Socio Director de la Firma de Abogados LeQuid, especializada en Derecho de los Negocios y de las Empresas Sociales, estoy plenamente convencido de que el desarrollo empresarial rentable y eficiente no sólo es compatible sino que necesita la ética empresarial. En la actualidad, desde LeQuid colaboro con empresarios que necesitan una segunda oportunidad a través de estos procesos; Apoyo legal en el día a día, Re emprendimiento socialmente responsable, Fusiones y Adquisiciones, Reestructuración y Refinanciación de empresas o Concurso de acreedores entre otros.

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