The management activity of the Compliance Officer: contract and content proposal

Abstract

The recognition of criminal responsibility for a legal person, set forth upon reform of the Criminal Code in 2010, gave rise to a new social and economic reality: regulatory Compliance services or Compliance services. The origination of new corporate needs based on the modification of the societas delinquere non potest principle drove new forms of establishing relationships within the professional scope. Thus, Compliance is being considered as a booming sector requiring the delimitation of the contractual content under which this service is provided. The bringing to market of Compliance services has raised a bit of concern and uncertainty in this field because of the lack of awareness of the elements to be integrated into the legal-contractual relationships for the provision of this new service. Showcasing an approach on the Compliance contract and outlining a content proposal for the performance to be assumed by the parties to the contract are deemed to be the cornerstone of this study. Starting with the fundamental function of supervision, surveillance and control of the criminal organisation and management models set forth by article 31 bis CC for which the Compliance Officer shall stand out as the primary actor. This function is set up as a main purpose activity upon which the performance of the atypical Compliance contract is built. Nevertheless, it shall be supplemented by other previous and subsequent performance such as: prevention, information, and report to the management body of the legal person, in addition to other activities not related to the management itself (e.g. designing, preparing and implementing preventive models). This work aims to highlight and give visibility to the possible contractual relationship between the individual professionally performing the task of Compliance and the legal person demanding Compliance services and to subsequently make a proposal on the contractual content to which parties may have recourse.