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News & Media

Compliance is not “compli-cated”, but rather “compl-ex”

Date: 16/05/2019

In April, the Criminal Division of the U.S. Department of Justice (the DOJ”), updated its Guidance Document, in order “to assist prosecutors in making informed decisions as to whether and to what extent, the corporation´s compliance program was effective[1].

The document explains that there are three fundamental questions a prosecutor should ask when investigating a corporation, determining whether to bring charges, and negotiating plea or other agreements:

  1. Is the corporation´s compliance program well designed?
  2. Is the program being applied earnestly and in good faith? Is the program being implemented effectively?
  3. Does the corporation´s compliance program work in practice?

In my mind, the DOJ is the top authority worldwide that applies the harshest sanctions and the most sophisticated approach, and for me personally, it is a great inspiration on how to think about compliance.

In Slovakia, we often face a very different approach from the authorities – bureaucratic, formal and unfortunately unprofessional. So, when reading through the DOJ´s Guidance Document, it made me think, “Why is this so, what is the root cause?”

Bearing in mind the different legal frameworks and systems, the answer was obvious and almost instant – formal, written legal regulation and the reluctance to look for the purpose and to apply constant efforts to interpret the legal regulation in line with the purpose.

The implementation of law in our region (whether by courts or other authorities), was very precisely described by Pavel Holländer, a philosopher and brilliant legal professional:  “the mechanical identification of law with legal texts became a welcomed tool for totalitarian manipulation. It has made the justice system a submissive and unthinking tool for advocating totalitarianism. This is also why the mechanical application of law, abstracting from the purpose and intent of the legal norm, shall create a tool for legal alienation and absurdity.”

And this is exactly what is happening in compliance as well. The interpretation of legal norms by the relevant authorities is often absurd, and even the most sophisticated corporations suffer from its ineffective implementation due to strict requirements required/imposed by the authorities.

The result of this is not surprising. There are many companies on the market that issue hundreds of strict internal regulations (and updates), thousands of pages of employee´s obligations, all compliant (of course) with the current status of the legislation. But there is also the other side of the story and that is a lack of willingness to know the rules or to follow them by the relevant employees.

It is the utmost obligation of all compliance officers to start implementing compliance procedures in corporation life effectively, and thus return to basics and start with the very same questions as suggested by the DOJ for its investigators.

The Guidance Document provides hints on how to evaluate, what to ask, what to focus on and what to think about. And yes, it is also the job of every compliance officer to stand up for its results and arguments effectively before authorities and/or the court. Only in this way can we all step out from the darkness of the totalitarian application of law in compliance.

Compliance is not complicated, but we are often afraid to go further, to dig into the purpose, provide for argumentation, think outside the box, because it is just so easy to draft another document exactly as the law stipulates and the work is done. Lawyers are no exception. So, let´s think complex, lets think in context and most importantly let´s have a reason “why” we are doing it. The implementation of any compliance norm while abstracting from the purpose and intent of the legislative framework is just another brick in the wall of compliance ineffectiveness.

JUDr. Lucie Schweizer


[1] https://www.justice.gov/criminal-fraud/page/file/937501/download