Compliance program
I. INTRODUCTION
To mark the entry into force of the Spanish Penal Code, Law 5 / 2010 of June 22, entered into force on December 23, 2010, all types of companies in Spain, must adapt their situation mentioned legal reform, and so commissioned a legal firm or compliance consulting to preparing a budget for the drafting of a Code of Ethics, as well as appropriate monitoring and ongoing assessment of compliance with the Code.
CONTENTS
In wants to adapt their situation mentioned legal reform, the companies must have a compliance program divided into two parts:
A) Drafting of a Code of Ethics.
B) The implementation, monitoring and control of the content of the Code of Ethics
1. A. Drafting of the Code of Ethics of the companies in Spain.
To avoid this code of ethics risks include the following points contained in the Spanish criminal law and the Bribery Act.
1. A.1. – Detection of the risks that could lead to the company of crimes in the field of …….
1.A.2. – A Code of Conduct. Companies must organize themselves. They must prepare and publish on its website, policies visible against possible violations of the Act, to come as far as possible to combat corruption, fraud and money laundering, protecting at all times the interests of shareholders and the company itself.
1. A.3. – The Director of the company must know and apply the code of conduct and commit to implement the compliance programs, serving as an example to employees, shareholders and stakeholders of company. Clear practical and accessible policies and procedures to take account of the whole work force and all entities over which commercial organization has control.
The company, will sent to each director, employee, partner, supplier, agent, consultant, auditor and law firm a copy of the letter signed by the legal representative of the company, explaining that the Code of Ethics is an expression value of the company. Each member has an obligation to read and implement the code of ethics. And that is a company recognized and respected worldwide for the quality of the value it provides, people and knowledge.
The integrity and reputation of the company cannot tarnish and therefore the implementation of the Code of Ethics is transcendental.
Any person acting on behalf or for the benefit of the company must sign the letter, stating that you have read the Code of Ethics, which understands its obligations and responsibilities, pledging to uphold the principles, policies and standards set forth in the Code of Ethics.
1. A.4. – Demonstration of ethical values.
Principles that they are applicable, laws Regardless of local or culture.
1. A.5. – Commitment to members of the company and clients.
– Privacy.
– Fair Deal.
– Obligations.
1. A.6. – Commitment to each other.
– Employee privacy.
– Fair Employment Practices.
– Discrimination and harassment.
– Safety in the workplace.
– Prohibition of smoking and substance abuse.
1. A.7. – Commitment to the brand.
– Electronic Communications. Concern about potential risks, sales, products, conflicts of interest, transactions, reputation, etc.
1. A.8. – Research.
– Protection of proprietary and confidential personal research.
– Protecting the name of the company.
1. A.9. -Commitment legislation. Compliance with laws, code of ethics, principles and recommendations.
– Criminal liability of legal persons.
– Know the status of risks, identify risks and plan for risks in the commission of crimes.
– Prevention, detection and minimizing the risk of committing a fraud.
– Identify the crimes can be committed within the company, explaining each of them and publicizing the penalties established by the Spanish Penal Code.
– Prevention of corruption. Implementation and enforcement of the Spanish Penal Code.
Top level commitment to bribery prevention. Establish a culture in which Bribery is never acceptable and communicate policy to management, workforce and external actors.
1. A.10. – Explanation of corporate criminal liability, crime, responsibilities and system of penalties provided in the penal code.
- A.11. – Preparation of codes of ethics and implementation of internal controls to prevent political corruption, bribery and other crimes, should promote ethical principles and internal compliance rules.
The company informed individually to all workers with the necessary compliance and enforcement of the ethical code of conduct and mechanisms for reporting an act contrary to law. At the time of reporting must be individualized to different policies regarding the acceptance of gifts, hospitality, entertainment, travel, incentives, grants, sponsorships, etc…
1. A.12. – Risk Assessment. The company must carry out risk assessment procedures, internal controls and compliance programs based on assessment of risk from the particular circumstances of the company (foreign bribery, the importance of licenses and permits operations the company, level of government oversight, etc …).
1. A.13. – Periodical review. The company should review at least annually, that the laws are enforced, that internal controls are operating and must update them if necessary, taking into account new developments and foreign policy, while ensuring full compliance.
1. A.14. – Report of supervision and management.
The company shall appoint a manager to ensure the effective implementation of standards and policies. The designated person shall inform the Director, including the board of Directors, having an appropriate level of management autonomy and adequate resources to carry out its responsibility.
1. A.15. – Internal controls.
Company should carry out internal control of the company’s books. The company will implemented internal reporting channels monitored and controlled by an external consultant.
1. A.16. – Training.
The company must implement mechanisms to ensure destination training and knowledge of the ethical policies (codes of ethics, internal reports, ..) to all managers and Delegation employees, and stakeholders through program of individualized information, the website, training courses and conferences, trying to ensure that in any case, the company and / or its employees and directors, violated the rules and codes of conduct.
1. A.17. – Advice.
The legal department or possibly an office / external consultant to advise workers, managers and directors of the company, in relation to the legal (national or international), preparing confidential reports about the various prohibitions that can reach making within the company.
1. A.18. – Disciplinary procedures.
The company shall dispose of disciplinary procedures to address among other things, violations of the laws, and to establish penalties for breaching the code of ethics.
Inform the ———, oversight committee, the board of directors, or if necessary to the prosecution or police, about internal fraud committed by members of the company, corruption, bribery, taking effective measures to prevent these bad practices, does ethical codes and effective measures in the event of breaking the law.
In turn, shall adopt disciplinary procedures in the event that complaints are false.
1. A.19. – Prevention in relation to agents and business partners.
The company must perform due diligence on its agents or business partners, assessing their background, reputation and expertise in the sector, conducting regular monitoring procedures.
Due Diligence policies and procedures covering all parties to business relationship including supply chain, agents and intermediaries, joint ventures (or similar) and all markets in which the corporate do business.
The company should be to inform agents and business partners, about the company’s commitment to compliance with current legislation, policies and ethical codes.
1. A.20. – Continuous Assessment.
The company must carry out an ongoing and periodic assessment on compliance with legal regulations and internal ethical codes.
PART TWO
1.B. Execution, Control, Monitoring, Prevention of crime commission. The importance of the implementation of the Ethical Code.
1.B.1.- INTRODUCTION
The new Penal Code which entered into force occurred on 23 December 2010, regulates, among many other provisions, the criminal liability of legal companies, as often requested by European institutions, saying the statute, the obligation and necessity that every company has either traded, large enterprise to organize internally.
As in the United States, UK and many other countries, all companies should adopt a system of regulatory compliance or Ethic Code to avoid a possible conviction product committing a criminal act committed by directors or employees on behalf of the company. By any employee, officer or management itself, is required to adopt a system of preventive compliance to avoid the possible violations of laws such as the Spanish Penal Code, the Bribery Act, the Corrupt Practices Foreign act (FCPA) or the Sarbanes-Oxley Act (SOX).
Compliance programs should be productive, as they must be beneficial, creating value not only the company but also for shareholders.
CEOs, presidents, directors and advisers, are becoming more aware of the impact and resulting bad image in society the act of committing an economic crime, committed by both managers as the employees themselves.
According to various reports conducted by various consultants, of the 100 leading companies in the UK, 2 / 3 of them have suffered fraud in the same, being more relevant in small and medium enterprises in the listed.
What we want is that the risk of the possible commission of economic crime in society, is minimized and the occurrence of the criminal act, it is detected in time for prompt correction, avoiding as far as possible the appropriate proceedings and if the penalty.
It is shown that an efficient policy against fraud risks within society, is very profitable for society.
Similarly, the society has a system to control fraud, avoid what in most societies does, that the crime was discovered by accident.
Therefore, the implementation of a fraud detection system, along with efficient advice regarding commercial liability, civil, and criminal administrators and managers within the company, will result in a decreased risk of fraud within the society.
CONTENTS
1.B.2. – We control through specific procedures, prevention, detection and control of the commission of a fraud within the Spanish Delegation.
1.B.3. -Advice in relation to the criminal liability of legal persons (companies and persons), Societas delinquere potest.
Article 31 bis of the Spanish Criminal Code, the criminal responsibility of legal persons, stating verbatim: “1. In the cases provided for in this Code, legal persons are criminally responsible for crimes committed in the name or on behalf of themselves and for their benefit, by their legal representatives and administrators of fact or law.
In these cases, legal persons are also criminally responsible for crimes committed in the course of social activities and for the account and benefit from them, and who, being under the authority of individuals mentioned in the previous paragraph have been able to make the facts have not exercised proper control over them addressed the specific circumstances.
2. The criminal liability of legal persons shall be required where it is shown the commission of a crime that had to be committed by the person holding the position or duties alluded to in the preceding paragraph, even where the particular person responsible has not been individually or not been possible to conduct the proceedings against him. When as a consequence of these facts is imposed on both the fine, court or tribunal modulate the respective amounts, so that the resulting sum is not disproportionate to the severity of those.
3. The crowd, in people who have physically carried out the acts or in which they had been made possible failure to exercise proper control of circumstances affecting the defendant’s guilt or aggravate their responsibility, or the fact that these people have died or may have been stolen from the course of justice, not exclude or modify the criminal liability of legal persons, subject as provided below.
4. Mitigating circumstances may be considered the criminal responsibility of legal persons have made, after the commission of the crime and through their legal representatives, the following activities:
a) Have been involved, before knowing that legal proceedings are brought against her, to confess the offense to authorities.
b) Have collaborated in the investigation of the facts giving evidence at any stage, they were new and decisive action to investigate any criminal liability arising from the facts.
c) To have acted at any time during the procedure and prior to trial to repair or minimize the damage caused by the crime.
d) Have established, before the start of the trial, effective measures to prevent and detect crimes in the future could be committed to the media or under the cover of the legal person.
5. The provisions on criminal liability of legal persons shall not apply to the State, the territorial government and institutional, regulatory agencies, the Business and Governmental Agencies, political parties and trade unions, international organizations law public or to those which exercise public powers of sovereignty, administrative or in the case of State commercial companies running public policies or services of general economic interest.
In these cases, the courts may make declaration of criminal responsibility in the event that appreciate that this is a legal form created by the promoters, founders, directors or representatives for the purpose of avoiding a possible criminal responsibility » .
The mentioned article provides that the entry into force of the law, legal persons can be sentenced without a previous declaration of liability upon individuals responsible for the crime. With this declaration as a statute of criminal liability of legal entities independently. Just as the criminal liability of legal persons does not exclude that of natural persons, the latter does not exclude criminal liability of those, nor is it necessary that they live both may have criminal liability of legal persons declared not criminally responsible of the individual.
Article 31 sets a budget in order to operate the status of criminal responsibility of the Delegation. This budget consists of the prior offense, committed on behalf and benefit of the delegation, by the natural person who has a leading position.
But also extends the liability of legal persons in cases of crimes committed by individuals, on which it has exercised proper control on the part of the legal representatives and administrators of fact or law societies.
What the legislature has sought to societas delinquere potest is that societies are organized, the powers of leadership to assume responsibility and corporate duties, focusing on the existing organizational shortcomings in much of society.
1.B.4. – Control of the Code of Ethics, so that in the event that the company is to be charged the commission of a crime, is exempt from punishment, showing that it has carried out effective controls.
If not carried out proper checks, even though it has drafted the ethics code, the punishment may be mitigated if, after the commission of criminal acts and through their legal representatives, will perform a series of measures the mitigation of the crime, but in any case, the company is exempted from punishment.
Corporate Penalties.
Article 33.7 of the Criminal Code establishes the penalties applicable to legal Corporate persons:
a) Fine for quotas or proportional.
b) Dissolution of the legal person. The solution ultimately results in the loss of legal personality and the capacity to act in any manner in legal, or perform any sort of activity, albeit legal.
c) Suspension of its activities for a period not exceeding five years.
d) Closure of premises and establishments for a period not exceeding five years.
e) Prohibition on future activities in the exercise of which has been committed aided or concealed the crime. This ban may be temporary or permanent. If it is temporary, the period may not exceed fifteen years.
f) Ineligibility for grants and aid, to engage with the public and to enjoy tax incentives and benefits or Social Security, for a period not exceeding fifteen years.
g) Judicial intervention to safeguard the rights of employees or creditors for as long as deemed necessary, not exceeding five years.
The intervention may affect the entire company or only some of its facilities, business units or sections.
The temporary closure of premises or facilities, the suspension of social and judicial intervention may be granted also by the trial judge as a precautionary measure during the investigation of the cause.
1.B.5.- CHANNELS OF COMPLAINT. Whistleblowing.
Employees and directors will be informed through lectures and brochures of how the process of reporting channels.
The complainant’s identity must be maintained as confidential. Should be an anonymous complaint line, to ensure and guarantee the protection of the figure of the complainant, for this setting is not discriminated against disciplinary rules if these circumstances occur.
The person, who wants to report about illegal acts, must have knowledge and assurance that their identity will be treated as confidential during the entire procedure.
Employees must know the channels available for reporting wrongdoing within the company.
We implement the proper procedure, through the reporting channels to lodge a complaint Whistle blowing. Complainant shall make all arrangements to make you feel comfortable and above all relieved to report, ensuring at all times the utmost confidentiality, and assess each and every one of the complaints received, giving the procedures established by management.
1.B.6.- Recurrent training to all members of the company.
Training to ensure dissemination of the anti corruption and anti fraud culture to all staff at all Levels within the company. A commitment to making it explicit that the Spanish criminal code, Applies to all members.
1.B.7.- Investigation on new workers, suppliers and agents.
1.B.8.- Carry out appropriate disciplinary measures against those responsible.
1.B.9. – Study, where expansion and modification of employment contracts.
1.B.10. – Accounting control every six months.
CONCLUSION
An effective compliance program will prevent the commission of crimes within the company and in the case of committed, if proper control is effective, shall be exempt from any punishment of a criminal nature in Spanish criminal law, from a fine to own liquidation and dissolution of the company