Corporate Compliance: A Key to Avoiding Liability
In recent years, there has been a growing trend towards holding legal entities accountable for criminal offenses committed by their employees or agents. In Spain, this trend is reflected in the introduction of the concept of “corporate criminal responsibility” (responsabilidad penal de las personas jurídicas), which aims to prevent and punish criminal behavior within companies.
Importance of Effective Corporate Risk and Compliance Management
To avoid liability, companies must ensure that they have an effective system of internal controls in place to prevent and detect criminal offenses. This includes adopting organizational and management bodies to prevent crimes from being committed or reducing the risk of their perpetration.
- Adopting measures to prevent criminal offenses from being committed
- Implementing a compliance system to demonstrate a “culture of respect for the law”
- Providing tangible manifestations or forms of surveillance and control
Additionally, there are certain circumstances under which a company’s criminal liability can be mitigated after the commission of a crime. To benefit from this mitigation, the company must:
- Confess the offense before the authorities become aware of it
- Cooperate with the investigation by providing decisive evidence
- Take steps to repair or reduce any harm caused by the crime
Recent Cases and Judgments
Recent cases have highlighted the importance of effective corporate risk and compliance management in avoiding liability. The Supreme Court has issued several judgments on this topic, emphasizing the need for companies to adopt measures to prevent criminal offenses from being committed.
- In one notable case, the court ruled that a company’s failure to implement a compliance system was not an excuse for its criminal liability.
- In another case, the court ruled that a company cannot be held criminally liable if it was itself a victim of the crime committed by its employees or agents.
Government Obligations
In addition to private companies, government agencies and state-owned enterprises also have obligations to manage risk and comply with the law. However, there are certain exceptions under which government entities are not liable for criminal offenses committed by their employees or agents.
- Territorial and institutional public administrations, regulatory bodies, and public agencies are exempt from criminal liability.
- State-owned companies that implement public policies or provide services of general economic interest may only be subject to fine penalties or judicial intervention.
Digital Transformation
In recent years, there has been a growing trend towards digital transformation in both the private and public sectors. This trend is reflected in the development of new technologies and systems aimed at improving corporate risk and compliance management.
However, there are certain statutory and regulatory differences between public sector and private sector risk and compliance management obligations. For example:
- Government bodies or agencies may have different requirements for data protection and cybersecurity than private companies.
Conclusion
In conclusion, effective corporate risk and compliance management is essential for avoiding liability in Spain. Companies that fail to implement such measures may face significant consequences, including criminal fines and reputational damage. Governments and state-owned enterprises also have obligations to manage risk and comply with the law, although there are certain exceptions under which they are exempt from criminal liability.