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
“
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