Corporates in Poland should prepare to defend themselves against corporate criminal liability. There is no much time left because the new law is likely to be passed in April. The proposed solutions will have a serious impact on each company based in Poland. The fines which can be imposed will be horrendous.
Two points of the new law are of paramount importance. These points are as follows:
First, the new law is going to give rise to criminal liability for companies - not only as a result of their own directors’ and employees’ actions, but also the actions of others with whom they are associated. The main criterion will be whether a company gains any profit or benefit as a result of an unlawful action. It will cover the obvious cases such as a criminal liability for a garbage dump or a chemical leakage to the environment but also for things such as tax evasion, fraud or any type of corrupt practices including bribes and kick-back schemes.
Second, companies may be held liable for criminal offences even if a perpetrator was not found guilty as charged. It will be sufficient for the prosecutor to prove facts confirming that a person performing a particular action for the company actually committed a criminal offence and that this was to the company’s benefit. This person will not have to be found guilty as charged (in the current system, the companies may be held criminally liable only if the perpetrator has been found guilty of a criminal offence). In the new system, criminal proceedings against a company may run in parallel with the proceedings against a perpetrator. The process against a company may be swift and ruthless.
If the company wants to fulfil its regulatory obligations and reduce the risk of criminal liability, it has to introduce the compliance policy and adopt some specific procedures. This is all the more important as the failure to comply with the law may adversely affect the company’s financial situation, as well as its image and reputation.
Each company should prepare itself and its employees for the new rules. The first step is to conduct internal audit to identify potential risks taking into account the company’s areas of activity and possibility of criminal offences. For instance, if a company is involved in manufacturing, then all criminal rules connected with manufacturing and delivering products to a marketplace should be analysed. In the case of a trading company, curruption and fraud may be more relevant. The analysis should be tailored to the company’s needs.
The second step would be to develop the rules of conduct and guidelines for the company’s management and employees and to appoint a compliance officer responsible for adoption of compliance policies and actions to be undertaken in case of potential illegal situations.
If the company takes no steps to regulate the area of corporate criminal liability, it will be extremely difficult to defend itself in the courtroom.
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