Saturday, August 13

“Criminal risk prevention programs are a protective shield that ensures the future of companies”

Juan José Cortés, an experienced lawyer and university professor who has linked his professional career in recent years to the well-known law firm Devesa & Calvo Abogados, dedicated to business advocacy, reflects on the criminal risk prevention plans in the company.

– What does business law cover?

The office is structured around the real needs of companies and its social and economic ecosystem covering all critical areas in which they may require expert help from legal professionals such as: Labor, Commercial, Tax, Procedural, Administrative Law and, in my case, the Compliance.

– What does the term Compliance refer to?

In a broad sense, Compliance (referring to compliance with legal regulations), is that part of the professional activity of legal advisors and other professionals that deals with the design, development, implementation and supervision of the so-called “Regulatory Compliance Programs”, that is, of the rules that directly or indirectly affect an organization (usually of a business nature) and whose non-observance usually has negative consequences for said organization in the form of sanctions, reputation, credibility, image, etc.

– It seems that there are more and more rules to comply with, is that correct?

In its origin, the compliance function was precisely linked to the dichotomy of complying or not complying, that is, supervise and supervise that the activity of the organization as a whole was aligned with applicable legal regulations and standards. So that in case of detecting risks of non-compliance potential or materialized, it was reported to the management about probable contingencies derived from such risks. This is the reason why the compliance area was originally linked to the legal or audit areas.

But today the globalization and digitization have exponentially multiplied economic activity like never before in our history. Economy and society are today hyperconnected which translates into a complexity and diversity of different regulations depending on the place of manufacture and / or sale of products and services on a global scale, on the one hand, and an increase in operational, environmental or legal risks, on the other. .

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The existence of criminal enforcement programs, For example, today it is a real necessity for companies if they want to function in this new scenario of competition and global risks.

– What role do lawyers play in this new scenario?

Faced with these new realities, the structures of organizations (especially business) have had to develop specific functions, sometimes legally imposed as the account auditors, the data protection delegate, the compliance officer, the health and safety coordinator, etc., so that the protagonists of this hyper industrial and commercial activity observe and comply the rules that affect them, thus ensuring the minimization of these risks and eventual damages to employees, consumers, shareholders, the environment, governments and society in general.

Nowadays the intangibility of products and services derived from digitization and their exponential growth generates a unacceptable volume of risks from the traditional perspective of codified continental law where the aphorism “If something is not expressly prohibited, then it is allowed” allowed risky behaviors without anticipated consequences expressly in the regulations due to the advantage that business innovation has always had over the Law and has, consequently, forced these continental systems to adopt a “preventive approach” in which the weight of prior control of the activities that generate these risks is turned into the company itself, which must implement all the necessary means to minimize the annul the same to the extent possible and being responsible for those who may have foreseen and controlled have not yet done so despite the absence of any express rule about the activity, product or service in question.

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The so-called Compliance Penal has been implemented in our country in the Penal Code itself, establishing the Penal responsibility of juridical persons (companies and other organizations) by certain crimes (fraud, fraud, against workers, consumers, finance, environment, etc.) committed within it by managers or employees in charge of those (provided that the organization cannot prove the prior existence of a regulatory compliance program in force aimed at avoiding them and benefits in some way from said criminal conduct) is the most notorious example of this new approach.

– What are these crime prevention programs?

A criminal risk prevention program basically deals with prevent, detect And in his case, minimize the impact of committing a crime (only certain crimes) within the company through the implementation of a series of standards and procedures that will allow identifying the risks committing a crime through what is called a risk matrix (which classifies them according to the seriousness of the crime and its impact on the organization and the probability of its effective commission within the company) and, depending on the activity, size, location of the same, will allow to establish the set of measures necessary for its cancellation or reduction until acceptable.

Similarly, the program has mechanisms for detecting irregular behaviors that may lead to crimes through the so-called internal complaints channel and, finally, the program must contemplate a company response model before the commission of a crime, in case that despite the existence of the program, it finally occurs. All this with the surveillance, supervision and coordinationn of a compliance officer: the Compliance Officer.

– What happens if there is no criminal compliance program installed in the company?

Well, not only cannot be exempted from criminal responsibility as recently happened to FC Barcelona for the famous Neymar case, convicted of a tax offense against public finances committed on the occasion of his incorporation to the club. In this case, the club agreed to pay the fine proposed by the prosecution as criminally responsible for the commission of said crime by his employee, simply by not having had a prevention plan in place at the time of committing that crime.

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Besides this, you will not be able to enjoy the advantages of its effective implementation such as improving the quality of decision-making processes in the company since its mechanisms are reviewed precisely to avoid risks, real chance of getting great customers that most of them require these programs to be able to contract with them, apply for all kinds of tenders and public offer acquisition with any national or foreign administration or, finally, power offer peace of mind to shareholders and investors in business growth strategies, alliances with other companies, etc.

In fact, in Devesa & Calvo Lawyers we have successfully implemented the criminal prevention plans in accordance with the UNE 19601 standard in several clients that are precisely in processes of growth or business merger, they work with large multinational operators from various sectors, have a direct relationship (as suppliers) with public administrations or have simply warned that it is not only a tool that protects the property of the company against the risks of its daily activity by its managers and employees, if not that, truly brings intrinsic value reflecting and clearly expressing the scope of the culture and values ​​of the organization in compliance with standards that govern their business activity in the pursuit of their excellence.

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