It is well known that it is becoming increasingly important that Spanish commercial societies, and in fact any commercial society regardless of its nation, to have an efficient compliance programme.
In many countries the idea of compliance is considered to be a soft law. However, in other countries such as Spain, the US, UK, Australia etc., compliance is embedded into law (hard law).
Institutionalizing compliance in Spain will be the main theme of detailed study in the following articles.
It is of vital importance to highlight the recent publication of the Spanish Ministry of Justice memorandum concerning the institutionalization of corporate compliance which applies to the corruption made by spanish business abroad discovered by the OECD.
Spain, unlike other countries, deliberately mentions the institutionalisation of compliance in the Spanish Penal Code. Moreover, the Spanish Penal Code deliberately notes the corruption offence achieved by the foreign employs of spanish businesses. As we can observe, the principle of territorial boundaries that everybody was accustomed with in the penal law sphere is slowly being discarded.
The finality of the introduction the issue specific to this type of offence is clear: to limit the development of business which lack professionalism, by deciding to develop businesses abroad to further corruption.
The main problem is that the shareholders/partners of the business may not know about or control what the representatives of the business are doing abroad because an efficient compliance programme has not been implemented. Therefore, the activity of the representative can easily get out of the control. As a result, it is crucial that the business has implemented an efficient corporate compliance system.
One of the advantaged of an efficient compliance system is that, in case a representative of the business has committed an offence abroad, the business can be exempt (“eximente”) from penal responsibility. While on the other hand, if it does not have a corporate compliance system or if it is not efficient (which is the same as the system being inexistent) than the extemption from penal responsibility does not apply and the business will have to suffer the sanctions regulated by the Penal Code.In a future article I will be discussing the sanctions involved.
Having the memorandum as the object of my analysis in this article it is recommended to Spanish businesses who are active abroad to:
- Analyse risk factors;
- To make sure the employees of the business are knowledgeable of the OECD Convention. I would also recommend to make their corporate compliance programme/code public;
- To adopt compliance systems (“Programas de integridad”) which are made to fit their own business;
- To conduct a legal audit (Due Diligence) when entering Joint Ventures, M&A;
- To conduct internal accountancy examinations;
- Be in control of the discipline of their employers and representatives;
- To implement systems of respecting norms.
To conclude, the international trend in clear: any business which wishes itself to be global or to play on the international market has to possess an efficient system of corporate compliance.