SPAIN Law and Practice Contributed by: Gabriel Rodríguez-Ramos, RODRIGUEZ RAMOS ABOGADOS
8. Compliance Expectations 8.1 Compliance Obligations There is no legal obligation to implement compli - ance programmes. The implementation of compliance programmes fulfilling the requirements of Article 31 bis CC (detailed in 3.3 Corporate Liability ) should gen - erate the non-existence of criminal responsibility of the company in the case a crime is committed by a natural person – either legal representatives or employees – on behalf of a legal entity or for its benefit. 8.2 Compliance Guidelines and Best Practices Enforcement bodies have not provided guide - lines regarding expectations and/or best prac - tices for compliance programmes. The closest thing to those guidelines is the guide published by the National Anti-Fraud Co- ordination Service in 2022 to implement anti- fraud measures when public administrations or public companies lead public procurement pro - cesses using those European funds, including risk assessment (fraud, corruption, conflicts of interests or double funding), preventive meas - ures (anti-fraud policy, code of ethics, internal control systems, anti-fraud unit, training and awareness), detection measures (red flags, data controls, whistle-blower channel) and correction measures. There are two methodologies that are being largely used by companies in Spain to comply with the criminal corporate compliance require - ments: ISO 37.301 (Compliance Management Systems. Requirements with Guidance for Use) and ISO-UNE 19.601 (Criminal Compliance
Management Systems. Requirements with Guid - ance for Use). 8.3 Compliance Monitorships Enforcement bodies do not have the option of seeking a compliance monitor as part of corpo - rate resolutions.
9. Assessment 9.1 Assessment of the Applicable Enforced Legislation
The Group of States Against Corruption (GRECO – Groupe d’Etats contre la corruption ) of the Council of Europe, adopted its last published report referred to Spain (addendum to the sec - ond compliance report) at its 92nd Plenary Meet - ing on 2 December 2022 (the last report – Sec - ond Compliance Report – adopted at the 95nd Plenary meeting on 27 November to 1 December 2023 is confidential) covering corruption preven - tion in respect of members of parliament, judges and prosecutors. The recommendations referred to: • corruption prevention in respect of members of parliament, includes the introduction of rules on how members of parliament engage with lobbyists and other third parties who seek to influence the legislative process; • corruption prevention in respect of judges, includes: (a) carrying out an evaluation of the legisla - tive framework governing the General Council of the Judiciary (CGPJ) and of its effects on the real and perceived inde - pendence of this body from any undue influence; (b) objective criteria and evaluation require - ments be laid down in law for the appoint - ment of the higher ranks of the judiciary
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