One of the main points of focus of the initial analysis of the Circular 1/2016 has been the position of the public prosecutor’s office in relation to how the regulatory compliance programs should be.
Below are some of the issues that I consider most interesting regarding the comments on the Circular in this respect:
1.- Need to have a real moral commitment.
In essence, the Circular is telling us that compliance programs cannot be superficial or equal to other programs (“one size-fits-all”), there must be a real commitment by the company, which will be translated into an organization that complies with the law and does not intend to turn the compliance program into a sort of insurance against committing crimes.
2.- Possibility of outsourcing
It expressly mentions the need for the compliance officer to be someone internal. This was something expected, since it seemed implausible for the Public Prosecutor’s Office to accept someone outside the company, who does not know how decisions are taken in the organization, to assume the role of compliance officer.
Notwithstanding the foregoing, the Circular tells us that in some companies the outsourcing of certain tasks of the Compliance Officer is possible, such as, for example, the function of updating legislation applicable to regulated sectors.
3.- Impossibility of the compliance program to prevent all crimes
While the Circular discusses the importance of crime prevention, it also tells us that compliance programs cannot prevent all crimes committed within the company. Therefore, committing an offense shall not mean that the model is inefficient. This idea comes from foreign systems of compliance that the Spanish legislation has taken as a reference, such as the FCPA Guidelines of the United States of America, among other texts).
4.- Need to use a computer program
Among all formal requirements to be met by a Compliance Program, which are provided in the Circular (for example, that the program is always set forth in writing), the requirement that I consider most interesting is that of managing the compliance program by a computer program. However, in our opinion, this requirement will vary depending on the size of the company.
CONCLUSION
From the reading of the Circular it is understood that the programs implemented by companies can not have a strictly criminal nature, nor do they involve a halfway commitment to comply with the law. In other words, companies may not just say they are committed to avoiding committing crimes and leave it at that. Likewise, the size of the company must be taken into account when designing the compliance system, as well as whether outsourcing the position of compliance officer is possible.
Vilá Abogados
For more information, please contact:
24th March 2016
Related articles:
