COMPLIANCE: BRIEF COMMENT ON THE COMPLIANCE PROGRAMS ACCORDING TO THE LAW ON CRIMINAL LIABILITY OF LEGAL PERSONS.

COMPLIANCE: BRIEF COMMENT ON THE COMPLIANCE PROGRAMS ACCORDING TO THE LAW ON CRIMINAL LIABILITY OF LEGAL PERSONS.

By ENRIQUE PRINI ESTEBECORENA[1]

INTRODUCTION

The LAW OF CRIMINAL LIABILITY OF LEGAL PERSONS No.. 27.401 (LRPPJJ), presents a number of challenges to business organizations from both public participation, mixed and private. Establishes clear guidelines on anti-corruption policy, with a decided emphasis on the transparency of the management of both civil servants, managers and shareholders as well as company employees.

The regulations receive the principles of the Convention to Combat Bribery of Foreign Public Servants in International Business Transactions, adopted by the Negotiating Conference of the Organization for Economic Cooperation and Development (OECD) the 21 November 1997, in force in Argentina since 15 February 1999.

To the application of the LRPPJJ is added the validity of the provisions of the Resolution of the Chief of Cabinet (RJG) 85/2018 for public and mixed business activity such as the Resolution of the Anti-Corruption Office (OA) number 27/2018 for private companies and all organizations with an associative structure (Civil associations, clubs, Foundations, Trade unions, Non-governmental organizations, Private universities, Business Chambers, etc.)

Both regulations advance in the establishment of an eminently practical normative plexus, focused on an analysis of the risks of corruption and regulatory violations that specifically affect business and corporate practice as well as its beneficial purpose for society.

CUSTOM-MADE SPECIFIC INTEGRITY PROGRAM

It is important to highlight that the elaboration of a specific diagnosis in each company is essential when starting to outline an Integrity or Compliance Program in any organization..

Regarding Compliance and risk control, each company has an original and unique pattern, which cannot be replicated as a commodity or a form applicable to different items or markets, even in the case of companies that work in the same industry or are competitors.

Why is this so? We have observed in practical experience with multinational companies, but also in small and medium-sized companies (SMEs) that there are differentiated elements. As an example, we can mention:

  • shareholding conformations: different partners, with diverse cultures of ethics and internal control, both national, foreigners and even from different provinces;
  • the geographic locations of your manufacturing facilities, distribution or service provision;
  • the work structure, both in gender conformation, such as professional training or age structure (Baby-Boomers, Generation Y or X, Millenials, etc.); Y
  • the use or not of Management Systems (ISO 9001, ISO14001 or ISO Series 37001).

All these varieties determine peculiar characteristics that radically modify the structure of the Compliance Program.. In addition, if it is a supplier company of the National State, by article application 24 of the LRPPJJ, makes the development of the Compliance Program mandatory, establish and put into urgent practice the elements that the norm establishes as essential within the detail of the articles 22 Y 23 of the LRPPJ.

So things, The use of evaluations and own and specific diagnoses of each company takes on a fundamental value and above all saves time and allows the best use of resources and costs in the implementation of the Compliance Program..

Especially, Having concrete and specific data applicable to that company allows to quickly implement control and monitoring measures in the areas that are detected as more prone to corrupt activities, receipt and giving of improper payments or kickbacks and disproportionate or excessive gifts.

This also allows the development of a Code of Conduct adjusted to the company, to follow not only the guidelines of the LRPPJJ but also to attack those issues, that following the Compliance criteria of “Tone from the Top” from the high management and the shareholders, aim to create an Ethical and Transparency Culture in the organization.

Another of the sources of savings and fundamentally of the efficiencies in the allocation of resources are also the advantages of the evaluation, by allowing the design of a training plan according to the risks detected. Focusing information and instruction activities specifically in the areas that are detected as more sensitive to acts or conduct contrary to transparency and criminal provisions of the LRPPJJ.

Regarding the audit of the Compliance Program and closing the virtuous circle of improvement that the LRPPJJ carries in its spirit and regulations, Specific sub-programs can be designed to demonstrate the diligence of the company in preventing illegal behavior or in violation of the aforementioned regulations.. And if its prevention is not possible, be able to detect it early and suppress its continuity and the damaging effect at the reputational level and criminal liability for the organization and its authorities.

Another cardinal element that justifies the personalized evaluation lies in the defense that the company could use at the time of a specific accusation of violation of the LRPPJJ, since both the liability waiver, as the grounds for reducing the sentence (for example, reduce fines from the maximum of 5 times the undue benefit to pass it on to 4, 3 oh 2 times said benefit) require proof, whose burden weighs on the company. The company itself must demonstrate the provenance of the Compliance Program, and fundamentally its concrete application, both in training, control and improvements.

The certainties thus obtained will be the backbone of the Compliance Program based on the company's own and specific risks., that will allow to have a broad protection both against anti-corruption problems and how to maintain the good name of the company. The scope of protection will not only be from the regulatory aspect but also to the entire strategy of marketing, safety, operational and reputational, giving value and certainty to the products and services that are marketed, as well as its shareholders and investors and Stakeholders.

CONCLUSION

Finally, We consider that the regulations for the correct establishment of a culture of transparency and anti-corruption are given in Argentina, both for large companies, SMEs and public and private associations.

It is time to put into practice and apply the provisions of the Chief of Staff and the Anti-Corruption Office, with specific criteria for each company, without forms and “packaged” products that will not achieve the cultural change sought in the organization, much less prove to prosecutors and judges that the due diligence of the good businessman is present in the Compliance Program and in its implementation.

[1] Of Counsel from Study A&F | Allende • Ferrante | Lawyers, Master in Finance & Law UCEMA, Certified Compliance Officer AAEC-IFCA, Founding Partner and former Vice President of the Argentine Association of Ethics and Compliance. Member of the Argentine Business Council for Sustainable Development-CEADS-. Member of the Council of the Chamber of Companies. Professor at the CEC AAEC-UCEMA, UCEMA and the UADE Foundation. Graduado del Regulatory Studies Program-The Eli Broad Graduate School of Management- Michigan St. University.  Certified as Compliance Officer, IAE-Ethics & Compliance Officer Ass. ECHO.

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