Compliance 2017 Compliance_2017 - Page 8

Corporate compliance annual report

Good compliance programmes are a key tool for winning business

The penalties for non-compliance are becoming more severe as the Portuguese government increases efforts to tackle corruption
Sofia Ribeiro Branco
As the Portuguese government steps up the fight against money laundering and corruption , companies increasingly recognise the need for a good compliance programme , the implementation of which can be a highly effective tool for preventing exposure to infractions and “ mandatory for winning business ”, says Sofia Ribeiro Branco , partner at Vieira de Almeida in Lisbon .
“ In Portugal , anti-money laundering ( AML ) and anti-corruption are at the top of the Government ’ s legislative priorities , with new and more demanding AML laws in the process of being approved , which are mostly based on European legislation ,” Ribeiro Branco says . “ In addition , laws related to cross-sector matters such as cybersecurity , competition , privacy , health , safety , security and environment have also been subject to significant change , as has the legal framework in regulated sectors such as energy , banking , insurance , auditing and capital markets .” Ribeiro Branco adds : “ On the one hand , regulatory and criminal penalties are becoming more severe , while on the other , recent legal regimes entail the adoption of written compliance mechanisms and compliance programmes , the breach of which may imply penalties .”
With Portuguese companies now facing severe fines and ancillary actions for breaching compliance obligations , along with a growing trend for potentially affected parties to use regulatory rulings or criminal prosecutions to build up cases against companies found guilty of breaches , compliance is increasingly being used as a strategic tool for doing business , according to Ribeiro Branco . “ Therefore , the way companies approach compliance matters – as perceived by employees , competitors , stakeholders and third parties – may be decisive when it comes to winning or losing business ,” she says . Ribeiro Branco adds that while the potential risks still depend on the business sector , the specific activity of the company and the jurisdiction , lawyers have an increasingly important role to play in designing tailor-made tools “ adapted to those particularities ”.

Change of ‘ company mindset ’ on compliance is vital

Cristina Coto
Spanish businesses often mistakenly think that having a compliance officer and a compliance programme is enough to stop them being held liable for regulatory breaches , but a change of company mindset is also crucial , says Cristina Coto , Partner at CMS Albiñana & Suárez de Lezo .
“ I see too many companies treat a compliance programme as just another legal requirement – they do it , have it and then they put it in a drawer ,” explains Coto . Consequently , not only do companies fail to produce an employee manual suitable for attorneys to use in court , they don ’ t look beyond the bureaucracy and embrace compliance as a social , ethical and cultural requirement , she adds . “ There are too many companies where the director of the legal department is very interested in having the perfect compliance manual but the board of directors don ’ t think the same ,” Coto says . “ For compliance to be successful in a company , the mindset has to change at the top .” This means the role of compliance officer must be taken more seriously too , she adds .
“ Companies believe that having a compliance officer is enough to be safe ,” says Coto . “ In reality , it ’ s a position that needs to be at a high level within the company , with enough autonomy to fulfil compliance objectives .” Another issue is there is still a mindset in which it is assumed that being an ethical company means being free from risk altogether , says Coto . “ Sometimes when we go to Spanish companies to explain compliance and the Spanish Criminal Code , they say ‘ no , that doesn ’ t happen here , we are a good company , we have no risk ’,” she explains . “ They are missing the point , risk is inherent in every company – the objective must be to identify and then mitigate or prevent risk – companies must know their risks and put all their efforts into preventing all of them .”
44 • IBERIAN LAWYER • May / June 2017 www . iberianlawyer . com
Corporate compliance annual report Good compliance programmes are a key tool for winning business The penalties for non-compliance are becoming more severe as the Portuguese government increases efforts to tackle corruption Sofia Ribeiro Branco As the Portuguese government steps up the fight against money laundering and corruption, companies increasingly recognise the need for a good compliance programme, the implementation of which can be a highly effective tool for preventing exposure to infractions and “mandatory for winning business”, says Sofia Ribeiro Branco, partner at Vieira de Almeida in Lisbon. “In Portugal, anti-money laundering (AML) and anti-corruption are at the top of the Government’s legislative priorities, with new and more demanding AML laws in the process of being approved, which are mostly based on European legislation,” Ribeiro Branco says. “In addition, laws related to cross-sector matters such as cybersecurity, competition, privacy, health, safety, security and environment have also been subject to significant change, as has the legal framework in regulated sectors such as energy, banking, insurance, auditing and capital markets.” Ribeiro Branco adds: “On the one hand, regulatory and criminal penalties are becoming more severe, while on the other, recent legal regimes entail the adoption of written compliance mechanisms and compliance programmes, the breach of which may imply penalties.” With Portuguese companies now facing severe fines and ancillary actions for breaching compliance obligations, along with a growing trend for potentially affected parties to use regulatory rulings or criminal prosecutions to build up cases against companies found guilty of breaches, compliance is increasingly being used as a strategic tool for doing business, according to Ribeiro Branco. “Therefore, the way companies approach compliance matters – as perceived by employees, competitors, stakeholders and third parties – may be decisive when it 6W2Fvr"6r'W6W72( Ч6R62&&V&'&6FG2FBvPFRFVF&627FFWVBFP'W6W726V7F"FR7V6f27FfGbFP6BFRW&6F7FwW'0fR7&V6vǒ'FB&RFFW6vrF"FRF2( FFVBFF6R'F7V&FW>( 6vRb( 6֖G6WN( 6Ɩ6R2fF7&7F6F76'W6W76W2gFV֗7FVǐFFBfr6Ɩ6Rff6W B6Ɩ6R&w&R2VVvF7FFV&VrVBƖ&Rf &VwVF''&V6W2'WB6vR`6֖G6WB267'V6607&7F6F'FW"B42&;`7\:&WFRW( Ē6VRF6W2G&VB6Ɩ6R&w&R2W7BFW Vv&WV&VVB( 2FWFBfPBBFVFWWBBG&vW"( ЦW26F66WVVFǒBǒF6W2fF&GV6RVVPV7VF&Rf"GF&W2FW6P6W'BFWF( B&WBFP'W&VV7&7BV'&6R6Ɩ6R066WF6B7VGW&&WV&VVB6RFG2( FW&R&RF6W0vW&RFRF&V7F"bFRVvFW'FV@2fW'FW&W7FVBfrFRW&fV7@6Ɩ6RV'WBFR&&B`F&V7F'2F( BFFR6R( 6F62( f"6Ɩ6RF&R7V66W76gVCB( "$U$uU"( "VR#p6FR֖G6WB2F6vPBFRF( F2V2FR&R`6Ɩ6Rff6W"W7B&RFV&P6W&W6ǒF6RFG2( 6W2&VƖWfRFBfr6Ɩ6Rff6W"2VVvF&R6fR( Ч626F( Ė&VƗGN( 26FF@VVG2F&RBvWfVvFFP6vFVVvWFגFgVf6Ɩ6R&V7FfW2( FW 77VR2FW&R27F֖G6WBv6@277VVBFB&VrWF66琦V2&Vrg&VRg&&6FvWFW"626F( 6WFW2vVvRvF766W2FW6Ɩ6PBFR767&֖6FRFW6( FBFW6( BVW&RvR&RvB6vRfR&6( ( 6PW2( FW&R֗76rFRB&62W&VBWfW'6( 2FP&V7FfRW7B&RFFVFgBFV֗FvFR"&WfVB&6( 26W0W7BrFV"&62BWBFV Vff'G2F&WfVFrbFV( Чwwr&W&wW"6