In the exercise of its functions, entrusted by Decree 277/18, the Anti-Corruption Office approved by means of Resolution 27/2018 (published in the Official Gazette on October 4, 2018) the "Guidelines for the best compliance with the provisions set forth in Sections 22 and 23 of Act 27,401 on Criminal Liability of Legal Entities" ("Guidelines") aimed at providing guidance to legal entities, governmental agencies, members of the judiciary and the professional community".
The Criminal Liability of Legal Entities Act (the "Act") gives legal entities the possibility of implementing compliance programmes aimed at preventing, detecting and rectifying irregularities or offences that may occur within the course of their business operations. Although adopting a compliance programme is not mandatory, it is of crucial importance for legal entities due to the following reasons:
is a mitigating factor of liability to be considered by the judge at the time of determining the imposition of sanctions when the legal entity has incurred in any of the offences punished by the Act;
excludes the legal entity's criminal liability if it self discloses the offence and reimburses the benefit illegally obtained;
having an adequate compliance programme is a necessary condition for legal entities wishing to enter into contracts with the public sector.
Adequacy of the Programme. Design and implementation guidelines.
Both the Act and the Guidelines give the legal entity the flexibility to adopt, develop and implement a compliance programme tailor-made to its needs, with the only condition being that it be adequate.
Although Section 23 of the Act lists the elements that the compliance programme may contain, the Act establishes that the adequacy of a compliance programme will be given by virtue of the following three criteria: risks associated to its business activity, legal entity's size and its economic capability.
The Guidelines provide some examples of risk indicators. However, each legal entity must assess the risks associated with its business activity by considering, for example, the jurisdictions -either local or global- where it operates, the direct or indirect (through third parties acting on the legal entity's behalf) interaction with public officials, the transactions conducted through commercial intermediaries, etc.
The requirements of any compliance programme shall bear relation to the size of the legal entity and be adapted and reasonable depending on its economic capability, in such a way that the requirements shall not be the same for an NGO, an SME or a multinational company.
The assumption regarding the legal entity's size is that, the greater its economic capacity, the greater the resources the legal entity should invest in the assessment, development, implementation, control and training of its internal and external (third parties) resources.
Over 70 pages, the Guidelines provide guidance both to the private sector -in the development and adoption of a compliance programme- and to the public sector -authorities and government agencies- who shall assess the adequacy of compliance programmes under the terms of the Act.
The Guidelines emphasize the importance of evaluating, developing and implementing a compliance programme whose components are reasonable based on the characteristics of each legal entity and the business sector in which it operates. At the time of designing the programme, it is important to bear in mind a potential scenario where the legal entity is required to explain to public authorities the reasons to why the compliance programme is adequate for the legal entity.
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