Wie auch in anderen europäischen Ländern sind die Unternehmen in Spanien in den letzten Jahren zunehmend gezwungen, ihre Aufmerksamkeit verstärkt auf Gesetzeskonformität und Unternehmensverantwortung (Corporate Social Responsibility) zu richten.
Am 23. Dezember 2010 ist das Gesetz 5/2010, vom 23. Juni, in Kraft getreten, welches die Novellierung des spanische Strafgesetzbuch beinhaltet und – zum ersten Mal in der spanischen Rechtsgeschichte – eine strafrechtliche Verantwortlichkeit juristischer Personen für bestimmte Delikte eingeführt.
Criminal responsibility of legal persons is applicable only to certain offenses specifically provided in the Criminal Code. The closed list of the offences is as below;
– Illegal trade;
– Traffic of human beings;
– Prostitution and corruption of juveniles;
– Fraud;
– Bankruptcy;
– Informative damages;
– Offenses against intellectual and industrial property rights;
– Offences against the market and consumers;
– Money laundering;
– Offences against tax authorities and the Social Security Administration;
– Offences against foreigners;
– Illegal construction, building or zoning activities;
– Offenses against the environment;
– Offences related to nuclear;
– Offences against public health, drug traffic;
– Falsification of the means of payment;
– Corrupt practices;
– Trading in influence;
– Corrupt practices on foreign functionary;
– Organized crime; and
– Financing to terrorism.
In addition, the following penalties, which are to be imposed especially on a legal person, are added to the Code. (SEE ARTICLE 33.7)
• Proportional fine
• An order of dissolution
• Suspension of the activities
• Closure of the establishments
• Prohibition of certain activities
• Disqualification
• Court intervention
Among above, the precautionary measures which may be granted to the court in order to avoid ongoing criminal conduct; in case of social impact or given the high post of the individual who failed to fulfill his “compliance” duties. Said measures may be:
• Temporary closure of business
• Suspension of corporate activity
• Court intervention
Under the following conditions, a company shall be responsible for the acts committed by a person of the Management and/or by an employee; (Article 33 bis. of the Criminal Code).
1) Unlawful acts committed on their behalf or to their benefit by a person within the company who is granted management authorities,
2) Unlawful acts committed by any other persons obeying such management authority, in the course of business activities of the company, on behalf and/or to the benefit thereof, as a result of the company not having exercised required degree of control over the persons under the particular circumstances of the case.
In addition, since criminal responsibility of a company is independent from the one of the person who commits a crime, it does not affect to the criminal responsibility of the company whether a tort-feasor is condemned or not.
TO LIMIT or EXTENUATE PENALTIES – COMPLIANCE
On the other hand, the Criminal Codes provides below described measures that can be exercised by companies to limit or deduct their criminal responsibility.
– Confession before the court procedure starts
– Collaboration in investigation of the case
– Reparation or minimization of the damage caused by the crime
– Establishing preventive actions and/or measures for discovering future crimes
Although the Criminal Code does not obviously mention that a company with internal control system is not to be responsible for unlawful acts committed by its management and/or employees, it is certain that the Code requires companies to exercise due control over its managements and employees for preventing them from committing crimes, which is, to establish an internal control system.
Compliance, needless to say, is one aspect of the internal control system. As you may already know, educating compliance, which is, what you may/must not do, to the people of the company is a meaningful way to prevent the company from being accused for an unlawful act committed by its employee. And to facilitate compliance education, it is highly recommended to appoint a Compliance Officer and to set Compliance Division in the company.
The obligation of the Compliance Officer and Compliance Division is to control or monitor activities of management and/or employees so that their activities shall not be illegal. To achieve this obligation, firstly Compliance Officer jointly with Compliance Division should prepare various internal regulations which management and employees can refer whenever they are going to act, for not being breach of any related regulations and laws. Compliance Division shall set a course of compliance training on the people or distribute reference materials so that consciousness of compliance penetrates. Compliance Division shall act initially upon receiving a report of an incident which might breach some regulations, investigate such incident thoroughly, and decide the manner of the company against such incident with consulting Compliance Officer and its management.
Since the business activities have various aspects, internal regulations to be prepared should cover wide range of the operations. The most important and most fundamental one shall be “code of ethics”, which provides managements and employees with general rules for act and react in their daily duties. Other than this, some regulations are very essential for the internal control system, such as Compliance Code, Organizational Rules, Board of Directors Regulations, Audit Regulations, Accounting Code, Document Control Regulations, Regulations on Treatment of Personal Information, Operational Rules, etc.
Lack of internal control, as you already acknowledge, may cause your company a serious damage including not only penalties mentioned above but also losing public reputation. In addition, although the Criminal Code does not mention that the management of the company owes criminal responsibility together with the company, the management may be questioned its responsibility in view of care and custody by shareholders, if the company suffers huge damage by being prosecuted.
If you review and recognize that your company cannot be regarded as a company exercising due control, this timing is an ideal opportunity to set “internal control system” in practice.
NOTE: Transformation, fusion, take over or spin-off of a company does not extinct the criminal responsibility of said company. Conversely, said responsibility shall be transferred to the resulting company of the M&A or the companies arising out of the spin-off operation.
Für weitere informationen kontaktieren Sie:
Ramon MAÑÁ: rmt@vila.es
16.09.2011
