Compliance 2017 Compliance_2017 - Page 4

Corporate compliance annual report Spain: What steps should clients take in order to be proactive on the issue of compliance? “Clients should understand that corporate compliance is not a nasty code of useless burdensome rules restricting the company’s activity, but a new culture that the company should embed in order to be capable of delivering more sustainable profitability on a long-term basis.” Leopoldo González-Echenique, consultant, Herbert Smith Freehills “Clients should be proactive in adapting their structures and organisations to the new regulations that will come into force. For example, regarding the new European Data Protection Act, some companies are doing a preliminary GAP analysis in order to implement all the measures required before May 2018.” Álvaro Marco, director of legal department (Madrid), BDO “Organisations should design and approve corporate compliance programmes according to the Spanish Criminal Code requirements. The governing body and the top management should demonstrate a firm commitment with regard to a culture of compliance. The organisation should entrust to a body with self-governing powers the supervision of the functioning and effectiveness of the compliance programme. The programme should assign compliance roles, functions and responsibilities to every member of the organisation. Organisations should ensure that everyone is competent through appropriate education, training or experience.” Emilio Moyano, senior associate, Ramón y Cajal Abogados “To implement a corporate compliance programme, clients need to create a programme that includes a manual and a whistle-blowing system, as well as a control structure in order to follow up the implementation of the policy. However, once the risks are analysed and policies implemented, it is essential to carry out training. Ethics and transparency should be key elements in companies.” Anahita Tárrega, partner, Marimón Abogados “Develop a top-down compliance system, with real commitment from the management and board of directors - this should be spread across the organisation in a way that can be proved before the courts. Second, establish a compliance system based on generally accepted standards. Although those standards should be taken only as a guide to building adequate compliance systems for each organisation – a ‘copy-paste’ approach is not the solution.” Francisco Javier Carbayo, partner, Deloyers Abogados compliance into the automation of their businesses, though this can be challenging. Hernandez says that one opportunity for lawyers is to act as “external members” of clients’ compliance committees where the lawyer acts as an adviser on “best practices”. In such instances, it is important that there is a clear “dividing line between those who are part of the decision-making body and those who act as an adviser to the decision-making body”, according to Pastor. Almodóvar says that a lawyer can advise a compliance officer/ 40 • IBERIAN LAWYER • May / June 2017 compliance officer, compliance committee or external advisers can be held responsible for offences committed by other employees or managers, provided they have fulfilled their responsibility in the area of compliance.” Training sessions Pastor says that there is a trend for clients’ requirements in relation to compliance to change. She adds: “The requests are changing, it used to be the basic ‘can you audit this?’ Now, it’s increasingly ‘can you do a training session?´ We’re going from design to deployment”. Another partner remarks that it is important that clients consult lawyers on their compliance programmes rather than simply “cutting and pasting a compliance programme from the internet”. Another problem that has been observed by some lawyers is clients entering joint ventures with partners in other jurisdictions, but then only one of the joint venture partners educating their own staff about compliance issues, with the other partner failing to do likewise. Compliance officers in companies in Spain often lack sufficient authority, according to one partner. “I’ve never seen a compliance officer in Spain with the authority to stop business,” the partner says. “I’ve never seen a compliance officer say ‘no’ to the CEO.” However, another partner remarks that the Spanish criminal code will change this situation. Compliance should be an imperative for business because they “cannot afford to do bad business”, according to one lawyer. Law firms also warn that there have been recent cases where clients have had to close businesses committee in order to recommend what to do in relation to each matter, but they should not make decisions on behalf of them. He adds: “As the public prosecutor says, you can externalize some Companies that of the compliance function, but not are declared ethical all.” Almodóvar says outperform the that, from the point rest of their market of view of criminal responsibility, “only competitors. those who actively María Hernández participate in an offence Eversheds Sutherland can be held liable”. He Nicea continues: “Neither the “ ” www.iberianlawyer.com