The 2015 Reform provides companies with an exemption from criminal liability if they have effectively implemented a compliance program that meets the requirements of the new Code.
The Code is broadly focused on crimes of very diverse nature—not focusing exclusively on bribery and/or corporate fraud. The Spanish criminal code contemplates this model as a preventive tool (and an affirmative defence instrument) in a number of ‘typical’ crimes of a “corporate” nature, such as:
Fraud, influence peddling; swindling, money laundering, punishable insolvency, IP and IT damages, personal data misuse, property planning corruption, drug trafficking, terrorist financing, forgery, credit card theft, trafficking in human organs, slavery, crimes against tax and Social Security regulations…
Requirements of the law
In the first case, the new Code allows to exempt companies from criminal liability under the following requirements:
- The board of directors has, prior to the perpetration of the crime, adopted and implemented an organizational, management, and control Model (the “Model”) suitable to prevent offenses of the type committed.
- The Code accepts that in small and medium-size companies (SMEs), the board of directors may accomplish the role of a supervisory body with independent powers of initiative and control.t.
- The individual authors of the crime committed the offense while intentionally and fraudulently eluding the Model.
- The supervisory body has not neglected its duties of supervision and control.
If the crime is committed by a subordinated individual, the company will have to prove that it had effectively implemented an organizational and management Model suitable to prevent offenses of the same type as the one committed, prior to the commission of the offense.
Companies should carefully identify the risks they may be exposed to where the crimes listed by the Code could be committed and adopt a compliance program (Model) tailored to prevent the same.
It is clear that staff training is key to the effectiveness of any such Model that the company generates.
(Adapted from “Corporate Compliance Programs”, Maria Hernandez, Eversheds International Law)