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CORPORATE CRIMINAL COMPLIANCE

Confidential Document

Corporate Criminal Compliance

Criminal Liability of Companies Compliance

Model of Prevention

Sensible Practices

Methodology Compliance Vigilance


Criminal Liability of the CompaniesCriminal Liability of

Companies


Neymar court case moves closer for Barça presidents Bartomeu and Rosell• Judge gives pair 20 days to respond to tax accusations• Prosecutors allege taxman was defrauded of €12.7m

The €57.1m transfer of Neymar has proved contentious for Barcelona. Photograph: Javier Barbancho/REUTERS

Criminal Liability of Companies


http://www.theguardian.com/football/2015/sep/15/neymar-court-case-barcelona-josep-maria-bartomeu-sandro-rosell


Criminal Code Organic Law

5/2010

Corporation shall be criminally liable for certain offences

The status of the corporation is not clear during the trial

An exemption seems to exist but is not specifically regulated

Current Criminal Code – After amendment by Organic Law 1/2015

Corporation shall be criminally liable for certain offences. The type and number of offences are increased

Corporation is treated the same as an accused individual during the trial

A Criminal Compliance program as the only means for the company to make itself exempted from criminal liability


Reason for the implementation of Criminal Compliance

The article 31 bis establishes the exemptions of responsibility:

a) Previous adoption and effective implementation of an appropriate organization andmanagement model that prevents offences like the one committed or reducessignificantly the risk of such offences being committed

b) A body with an autonomous initiative and control powers must supervise thefunctioning and the compliance with the program

c) The individual perpetrators have committed the offence by fraudulently misleading theorganization and prevention models

d) The body of b) carried out the supervision of the program


Reason for the implementation of Criminal Compliance

As well, the Code provides mitigation on the liability.

Extenuating circumstances in relation to the criminal liability of legal entities shall onlybe deemed to exist, if, subsequent to the offence being committed and through theirlegal representatives, they have:

• Confessed the offence to the authorities, before learning that legal proceedings arebeing brought against them

• Collaborated with the investigation into the matter, providing evidence, at any point inthe proceedings, that was new and decisive in relation to clarifying the criminalliability arising from the facts

• Repaired or diminished the damage caused by the offence, at any point in theproceedings and prior to the hearing

• Established, prior to the hearing of evidence, effective measures to prevent anddetect offences that may be committed in the future with the means or under thecover of the legal entity



Offences smuggling illegal organ trade trafficking in human beings prostitution, sexual exploitation and corruption of minors discovery and revelation of secrets swindling frustration of execution punishable insolvency damages against intellectual property against industrial property against the marketand consumers corruption in thebusiness

receiving stolengoods and moneylaundering illegal funding of politicalparties against the Social Security and theTreasury against the rights of workers against the rights of foreigncitizens concerningorganization of theterritory and townplanning against natural resources and the environment related to nuclear energy and ionizing radiations

of risk caused by explosivesand other such agents agains the publichealth on forgery of currency and taxstamps on forgery of credit and debitcards and traveller’s cheques bribery on influence peddling committed when exercising thefundamental rights and publicliberties guaranteed by theConstitution of terrorism



Who can commit an offence?

Chief Executive Office

Any employee of the company (including directors)


Criminal Liability of the Companies

Penalties for legal persons Fine by quotas or proportional

Dissolution of the legal person

Suspension of its activities for a term that may not exceed five years

Closure of its premises and establishments for a term that may not exceed five years

Prohibition to carry out the activities through which it has committed, favoured or concealed the felony in the future. Such prohibition may be temporary or definitive. It temporary, the term may not exceed fifteen years

Barring from obtaining public subsidies and aid, to enter into contacts with the public sector and to enjoy tax or Social Security benefits and incentives, for a term that may not exceed fifteen years

Judicial intervention to safeguard the rights of the workers or creditors for the time deemed necessary, which may not exceed five years


Relations with the Public Administration and the political parties

Sensible Practices

Relations with the Social Security and the TreasuryBusiness trade

Organization of the territory and town planning, natural resources and the environment

Collective SecurityFrauds

Workers and foreign citizens Other offences: trafficking of human beings, illegal trade of organs…

Data ProtectionInformation Technology

Receiving stolen goods and money launderingRelations and decision making inside the company


Characteristics

◙ Customized and adapted to the company◙ Neutral◙ Operational◙ Accessible◙ Simple

Configuration of the work team◙ Determine the human teams engaged in the process◙ By company, by department

Model of Prevention


1) Knowledge of the sensible

practices

• First meeting between Bufete Escura and the Company to determine the documentation needed to know the sensible practices

2) Collection of documentation

and questionnaire

• Collection of required documentation. Forward to the company the questionnaire in order to analyze the risks of each department

3) Preparation of the questionnaire

• Preparation of the questionnaire

MethodologyKNOWLEDGE OF THE COMPANY


4) Preparation of the memory

• Configuration of the memory adapted to the company

5) Establishment of the organizational

programs

• Establish the organizational programs for each type of offences

6) Closure of the memory

• The closure of the memory with the whole information and is introduced to the direction of the company

MethodologyCOMPLIANCE


7) Approval of the memory

• Approval agreement of the memory by the administrators and the board of directors.

8) Presentation to the employees

• Training of the responsible and selected employees• The employees sign the document according to the Corporate Criminal Compliance.

Send information to the Committee

9) Creation of the Committee of Vigilance and Control of the Compliance

• Creation of the Committee of Vigilance and Control of the Compliance• Periodic Meetings with the professionals. Recomended term revisions of the

documentation that guarantees the vigilance measures

MethodologyIMPLEMENTATION OF THE COMPLIANCE


EXEMPTION OF CRIMINAL LIABILITY

COMPLIANCE

Company

Compliance


Compliance officer body

1.- Review of the documentation and the sensible practices

2.- Determine the members of the Committee


Conclusion

Corporate Criminal Compliance of the legal entities is a reality since the reform of the Criminal Code

The unique mechanism of exemption on liability is the Compliance. Article 31 bis

The service offered is adapted to the regulation requested by the law

Sensible practices must be analyzed and the Company must create organizational programs

The phases for the implementation of Criminal Compliance are based on a methodology and co-work within the legal entities


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