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BGI Spain - Implementation of the criminal prevention system in companies

Circular 1/2016, of the Spanish State Attorney General's Office, on criminal liability of legal persons. The Office of the Attorney General of the State published on January 22, 2016 a rule, the Circular 1/2016, in which it offered very important indications on the effectiveness of the “Compliance” prevention plans (or Criminal Risk Prevention and Management Plan) in the companies.

Francisco Lorenzo Martínez Balms Abogados | Balms Marbella

16/09/2019

BGI España - Implementación del sistema de prevención penal en las empresas

The essential thing when it comes to providing our company with a criminal prevention plan is that with the said compliance program we not only combat and prevent the commission of crimes in the company and eliminate the risks of its managers and employees, but also with this plan we invest in the business culture of our business making it more solvent and attractive in the market.

A Compliance plan in the company introduces a specific business culture endowed with values, beliefs that must govern the internal and external behaviour of any organisation. The introduction of the business culture that facilitates the Compliance program, has a great influence on the staff and determines all aspects of their activity and how they act. Therefore, a company must be aware that not providing its organisation with a Compliance program entails exposure to significant economic and personal risks that in many cases affect the company's survival.

In the same way, the said Circular of the Spanish State Attorney General's Office is pronounced, whose main aspects are the following on Compliance programs:

1. These “Compliance” programs should not focus so much on the objective of avoiding possible criminal liability, but rather on installing and strengthening a corporate culture of respect for the Law (particularly Criminal). It is about promoting true loyalty of all members of the organisation.

2. They shall impose the obligation to report possible risks and breaches to the agency responsible for monitoring the operation and observance of the prevention model.

3. Establish a disciplinary system that adequately sanctions non-compliance with the measures established by the model.

4. Perform a periodic verification of the model and its possible modification when relevant violations of its provisions become apparent, or when changes occur in the organisation, in the control structure or in the activity carried out that make them necessary.

5. The Compliance Programs must be “clear, precise and effective and, of course, written in writing (…) their adequacy must be proven to prevent the specific crime that has been committed and (…), they must be perfectly adapted to the company and its specific risks ”.

6. An effective and essential instrument is the Internal Complaints Channel.

7. Regarding the figure of the Compliance Officer, the Office of the Prosecutor Circular indicates that outsourcing constitutes a better guarantee of compliance, and also improves the training of staff (both managers and employees). The external company also guarantees higher levels of independence and confidentiality.

8. Finally, in relation to small businesses, they will be able to demonstrate their commitment to current legislation by adapting to their dimension of formal requirements, which demonstrates their culture of regulatory compliance.

For all these reasons, today, giving our company a Compliance program is a business opportunity and investment element in the excellence and quality of our organisation.

How much is the cost of a Compliance program? It depends on the organisation since this program has to adjust to the reality of the company and its activity in particular. However, the question should be formulated as follows:

How long can you risk having your company sanctioned or even closed, for not investing in programs to promote a culture of integrity and compliance?

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