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EU & Competition Report


Regulatory Compliance Report 2013 A ticking time bomb

An abstract from Iberian Lawyer May / June 2013 For further information please contact

May / June 2013 • IBERIAN LAWYER •


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REgUlatoRy ComplianCE annUal REpoRt

A ticking time bomb The crisis has prompted a run of ever-changing regulations across Iberia, bringing to the forefront the increasing need for legal services on compliance. But more recently, it is the costs of non-compliance that are grabbing the headlines. Cases involving fines, reputational damage and even potential jail terms are highlighting the risk companies take if they do not make compliance a priority.

across the board, agree lawyers – the need for a company to understand and comply with a set of rules to be able to work in their domestic market and also to enter and do business in international ones. “And some clients are at the forefront of compliance,” explains Cecilia Pastor, Corporate Partner and Head of Compliance at Baker & McKenzie in Spain. “They have taught us what compliance is and how to live with it.” Risk management is a key concern at the moment, at both strategic and operational levels. Organisations are therefore increasingly placing greater emphasis on compliance and governance issues, says Iria Calviño, Co-Head of Public law Iberian companies are entering a new era & Regulatory practice of Herbert Smith where compliance is seen as a ‘must have’ Freehills Spain. rather than a ‘nice to have’. Until recently, However, one complaint from lawyers it was only the large multinationals that had it at the top of their agendas, while the and clients alike is that Iberian regulations are not clear when compared to the small and medium-sized (SMEs) were far transparency of the US and UK systems, more concerned with surviving the crisis. But the consequences of non-compliance for example. “The real question is what we understand by the term ‘compliance’,” says are hitting the headlines, with corruption Alejandro Touriño, IT and Compliance and fraud cases on the rise. And what is Partner at Ecija. “Since our regulations are grabbing companies’ attention is not only at such an early stage, we can decide what the reputational and economic damage, they should cover and what we mean by but the personal liability of company employees that could result in a jail term if ‘compliance’ in Spain.” Portugal is also learning how to play convicted. the game of regulatory law, says Gonçalo SMEs are therefore waking up to the need for internal programmes, policies and Anastácio, Head of Competition at SRS Advogados. “Many stakeholders don’t compliance officers, and to do so before want to understand the regulation that is any problems arise. With compliance, needed in our new liberalised economy. prevention is always better than cure. But as this is changing, it is becoming “While perceived by some companies increasingly necessary to have proper as a necessary burden, others believe that there is a compliance dividend – a business regulatory tools.” One of the major problems, say lawyers, lies with the case for investing in proactive compliance regulators themselves. “Clients tell us programmes,” says Magda Cocco, a that they don’t know how to act or how Partner and Co-Head of the TMT, Privacy to comply because some regulators do & Data Protection, IT & Outsourcing not issue guidelines or reply in time to practice group at Vieira de Almeida. questions,” explains João Paulo Teixeira de Clients therefore want law firms Matos, a Partner at Garrigues in Portugal. that offer teams with specific industry Maybe one good thing to come out of knowledge, tackling compliance from both the crisis is that the country has become a legal and economic perspective, and more exposed to, and scrutinised by, the anticipating changing legal frameworks. international community. For Portuguese And there is no doubt that compliance is companies to do business abroad, and now top of the priority list, say lawyers, also for the domestic economy to attract as the penalties for not doing so could much-needed investment, there has to be potentially devastate a business. transparency when it comes to compliance. But compliance is still very much an elitist What is ‘compliance’? concept in Portugal, summarises Daniel The concept of compliance is a huge challenge, with many different variants on Reis, TMT Partner at PLMJ: “It is a rich man’s game.” its exact meaning. The problem is that it touches so many areas, and the regulations The client perspective are hugely varied depending on sector. Clients are becoming increasingly aware But there is a common methodology

La crisis ha provocado constantes cambios en la normativa de la Península Ibérica, poniendo de manifiesto la creciente necesidad de asesorarse jurídicamente en materia de Cumplimiento Normativo. Sin embargo, últimamente, los titulares de la prensa destacan el coste para las empresas del incumplimiento. Las posibles multas, el daño reputacional e incluso las penas de cárcel son los riesgos a los que se enfrentan si no priorizan su control interno.

May / June 2013 • IBERIAN LAWYER • 39

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many more to come. However, many clients feel that because they already have a compliance programme they are covered. But it is not a question of having one, but of whether it actually works and deals with the question of liability. In Spain, SMEs and foreign-owned subsidiaries are those with increasing compliance needs, says Rocio Merlino SanchezElvira, a Partner at Islaw Abogados in Spain. Medium-sized enterprises that are expanding require the most support when it comes to compliance, because as a consequence of growth, they usually have to adapt their structures and capacities to new tax obligations, for example. “In those cases, they often rely on the use of external advice services,” says Carlos Diéguez, Head of Tax at Broseta, “accompanying them in the process of the implementation of new tax management procedures.” Over the past months, major amendments affecting entities doing business in Spain have been introduced, mainly related to corporate income tax and new reporting duties. These entities should therefore pay special attention to tax compliance, says Pablo Wesolowski, Senior Partner at DAC Beachcroft in Spain, in order to avoid unexpected risks and subsequent penalties. Compliance, however, is not necessarily a current priority for a number of SMEs, as they are focusing on overcoming the difficult market situation. But more and more mid-sized enterprises are seeing that compliance is not just an issue for big companies or multinationals, and recognising that the financial and criminals risks of non-compliance can be life-threatening. “On the other hand, clients see that meeting their compliance commitments not only helps to avoid risks but also brings financial added-value,” says Sönke Lund, a Partner at Monereo Meyer Marinel-lo Abogados. “Lots of their business partners demand proof of compliance by the company, and this development will be even stronger in the future.”

While perceived by some companies as a necessary burden, others believe that there is a compliance dividend – a business case for investing in proactive compliance programmes. Magda Cocco, Vieira de Almeida

of the consequences of non-compliance, especially given the increased risk of high fines, the lack of an efficient judicial control, and, more importantly, the potential for individual criminal liability and potential jail terms. But the meaning and awareness of compliance also depends very much on the sector and nationality of the client. According to Irene Martínez Saltó, a lawyer in the Corporate Compliance Department at Cuatrecasas, Gonçalves Pereira in Spain, there are two types of client – Spanish companies with no experience in corporate compliance or how to deal with criminal liability issues, and multinational companies with subsidiaries in Spain that need to adapt, expand and harmonise their procedures to the Spanish legal requirements. Lawyers across Iberia agree that international companies are those more open to the issue. “Foreign clients often come to you asking for advice on compliance,” says Santiago Garrido, Head of Regulatory at Hogan Lovells in Spain, “but with Spanish clients, sometimes you have to sell the concept to them.” Spanish companies don’t yet understand that the most important point for any compliance programme is evaluating risk, says Bernardo del Rosal, Of Counsel at Clifford Chance in Spain. “Preventing risk is the best guarantee at avoiding problems in the future. But we need a big example case in the courts before companies will take note.” Pescanova and Caja Madrid are two very recent examples, and lawyers believe there are

Spanish style When it comes to having a compliance department, it is the international firms and Big Four auditors that lead the way in Spain. This is due to their US or Anglo Saxon influences – jurisdictions that have a more advanced compliance approach than their Iberian counterparts. Baker McKenzie, for example, is divided into international groups with global and regional steering committees, and a dedicated team in Madrid. While at BDO, they have a strong Anglo-Saxon influence so compliance is in their culture, according to Paula Álvarez-Ossorio, Director of the Legal Department at BDO in Spain. At Jones Day, the Madrid office 40 • IBERIAN LAWYER • May / June 2013

has a multidisciplinary team that coordinates with other worldwide offices of the network, if needs be, on cross-border matters. DLA Piper Spain also has an internal Risk Management and Compliance Helpdesk. The domestic firms, however, adopt a more varied approach. At Pérez Llorca, for example, they have a compliance department with members from different teams, while at Monereo Meyer Marinello Abogados, the Compliance Department is embedded in their Corporate and Business Transactions Practice Group. Since the end of 2010, Cuatrecasas, Gonçalves Pereira has had a corporate compliance team, while Ecija has a dedicated

compliance team within its Information Technology department. And at Garrigues, compliance advice is implemented by multidisciplinary teams led by the criminal law, corporate governance and sustainability departments, explains Jesús de la Morena, a Partner at Garrigues in Spain. Lupicinio Abogados, however, takes another approach, with a mix of an internal department with an external alliance – Informa Consulting, a firm of compliance services. “The team is formed by lawyers, auditors and consultants providing an interdisciplinary perspective to our services,” says Sergio Salcines Gasquet, Head of their Compliance.

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A criminal necessity Some clients are at the forefront Amendments to the Spanish Criminal Code mean that of compliance. They have taught the prevention of company and individual criminal liability, including directors and employees, is a key us what compliance is and how area where clients are asking for assistance, according to Estibaliz Aranburu, a Partner at Gómez-Acebo to live with it. . & Pombo. And when defending against allegations Cecilia Pastor, of personal liability, if the company can show that they have an established compliance programme in Baker & McKenzie operation, then it may help to mitigate the charges, says Jesús Santos, Head of White Collar Crime at Baker & McKenzie in Spain. But this poses a number of difficulties because this complexity and the technicality on the market, have there are no guidelines on how to shape compliance produced in regulatory rules in these areas. programmes, and what specific measures, structures Since the onset of the crisis, there has also been a or procedures must be implemented by a company to very noticeable upturn in the number of investigations prevent bribery and other criminal conduct, says Juan conducted by the Tax Authorities, says Adolf Rousaud, Jiménez-Laiglesia, Co-Managing Partner at DLA Piper Managing Partner and Head of Corporate at Rousaud Spain. Nor are there guidelines on how to develop Costas Duran in Barcelona. And this has increased further effective corporate anti-corruption policies, which as the economic situation has deteriorated. makes it difficult to analyse compliance in the context of Key areas of client concern include the review of corporate criminal liability arising from bribery offences. compliance programmes and general policies of the However, the Ministry of Justice has recently company and the implementation of whistle blowing submitted a draft amending the Spanish Criminal channels, according to Miguel Bermúdez De Castro, Code to the Council of State to tackle these very Corporate and Finance Partner at Jones Day in Spain, issues and more. Described by lawyers as a potential as well as assistance in antitrust dawn-raids and cartel “breakthrough” in the compliance arena, the draft still investigations, and the drafting of guidelines for has to go through the legislative process before things can competition inspections. really begin to move forwards. Advice on and implementation of the US Foreign Corrupt Practices Act (FCPA) and other anti-bribery Spanish demands regulations is also very much in demand. And practical The financial sector is in turmoil, and, as a consequence advice is also needed on corporate governance, risk of the crisis, recent years have seen an rise in the amount management and other areas, says Jesús Vélez Partner, of regulation. The Spanish authorities have also been Insurance/Reinsurance Partner at Kennedys Abogados, increasing the pressure for information in the financial which are key to clients operating successfully in their sector, and the costs of compliance have never been respective regulated environments. higher, say lawyers. Furthermore, says Natalia Martí The Spanish energy sector, in particular, has suffered Picó, Corporate Partner at Roca Junyent, the complexity the consequences of the Government’s attempts to and the technicality of some areas, such as derivatives reduce the ‘tariff deficit’ and to re-establish the balance and securitisations among others, as well as the effects of between the costs and revenue within the Sector.

Portuguese practice Most law firms agree that due to the size of the Portuguese market, and the considerable amount of national and EU industry regulations, it is very difficult to set up a ‘one size fits all’ team. Different business areas have different compliance needs, says Bruno Azevedo Rodrigues, a Partner at ABBC, and while a ‘preventive’ approach may be common, the issues that each sector faces, the clients’ obligations and the measures and remedies to adopt are quite diversified. As a result they have dedicated teams advising on regulatory matters, including compliance, on a sectorbasis. Pbbr also has a team specialised

in compliance issues, says César Bessa Monteiro, an IP and TMT Partner, made up of a specific group of lawyers, one from each area of specialisation. While AVM Advogados forms multijurisdictional teams gathering experts from the relevant jurisdictions. At Miranda Correia Amendoeira & Associates, they have implemented a multi-tiered approach to regulatory compliance, says Luis MS Oliveira, Head of Public and Regulatory, organising teams on the basis of clients’ needs for legal assistance on compliance, with rules that are specific to each of the various regulated industries, and also common cross-industry

compliance rules. At Gómez-Acebo & Pombo in Lisbon, their tailor-made team approach is led by a lawyer in regulatory compliance, part of the public department, and in charge of organising specific task force teams according to the practice areas and sectors involved. While this trend of an ‘ad hoc’ method of providing compliance services isn’t likely to be changing anytime soon, say lawyers, this doesn’t mean it won’t eventually have to happen. Many believe that in the future Portuguese law firms will have to have dedicated compliance departments, although this may take a while to materialise. May / June 2013 • IBERIAN LAWYER • 41

Regulatory Compliance Annual Report

Portugal is learning how to play the game of regulatory law. Many stakeholders don’t want to understand the regulation that is needed in our new liberalised economy. But as this is changing, it is becoming more and more necessary to have proper regulatory tools. Gonçalo Anastácio, SRS Advogados

“There have been several regulatory changes during 2012, so the demand of legal compliance services has significantly increased,” says Antonio Morales, a Partner at Latham & Watkins in Spain. In particular, renewable energies are facing permanent legislative changes, according to Juan Rodríguez Cárcamo, a Public Law Partner at Pérez-Llorca. And changes in metals prices, and the prospect of shale gas production activity in Spain, are increasing the activity of junior mining and oil and gas companies. Accordingly, their compliance needs are also growing due to new and stricter regulations, as well as due to community concerns and social pressure by ecological organisations on the Administration, says Antonio García Muñoz, Head of Public, Regulatory, Environmental and Competition at Lener. Portuguese necessities Portugal also suffers in the energy sector, most notably due to the legislative and regulatory changes impacting it over the last year as a result of the MoU signed with the Troika. Furthermore the water and waste management sectors, particularly on environmental matters, are high on agendas. Complying with environmental law is always something to which clients ask for a ‘high level’ of attention. The requirements have been increased in the last years, says Rita Santinho Martins in Administrative, Regulatory and Environmental at Gómez Acebo & Pombo in Portugal, and the regulatory authorities are increasingly demanding. In addition to the banking, finance and insurance sectors that were directly impacted by new regulations as a result of the crisis and increasing levels of accountability, other sectors have been targeted by increased compliance requirements, says António Vicente Marques, Founding Partner of AVM Advogados. “Pharmaceutical, healthcare, telecoms and activities impacting on environment are some of the sectors affected by this new wave of compliance requirements.” And medium-sized companies in the technology and scientific sectors are increasing their activity in Portugal, adds Cláudia Amorim, Senior Associate in Corporate Crime and Regulatory Compliance at Sérvulo & Associados, and trying to take their first steps towards risk management. In tax in particular, increasing pressure from the Authorities has been felt in recent years in relation to the assessment and collection of taxes. Accordingly, two big trends have emerged in tax compliance lately. The first is an increasing demand from high-net-worth individuals to restructure their assets to comply with the applicable regulations, avoiding any future additional 42 • IBERIAN LAWYER • May / June 2013

assessments, says Rogério Fernandes Ferreira, Founding Partner at tax boutique RFF & Associados. “And companies continue needing judicial assistance in tax litigation as there have been, on several matters, administrative instructions which, despite being in breach of the applicable legislation, are put in place to raise the tax revenue.”

Crossing the border Doing business in general is becoming more and more complex. Business is increasingly done on a worldwide, basis, which, according to Sofia Ferreira Enriquez, Head of Regulatory and Compliance at Raposo Bernardo, means that more laws and regulations apply. Generally speaking, the failure of a company to comply with the local law of a given jurisdiction may mean failing to gain international visibility, and therefore competitiveness, says Tânia Pinheiro, a Partner in Tax, Restructuring, Administrative and Judicial Tax Litigation at Caiado Guerreiro. With the crisis increasing the need for internationalisation, clients are facing complex regulatory frameworks worldwide. “The potential risks of ineffective global governance and compliance systems for multinational companies are often not recognised until failure occurs,” says Patricia Manca, Regulatory and Corporate Compliance Partner PwC Tax & Legal Services in Spain. “One of the major challenges that multinationals entities are facing is the need for the implementation of internal controls to ensure effective control of legal entities on a global basis.” Internationalisation is therefore an important question, as it can, and in fact very often does, present serious compliance issues, says Antonio Mendonça Raimundo, a Partner at Albuquerque & Associados, especially relating to specific geographical areas where the harmonisation of laws, regulations and practices does not exist or is scarce. For Spanish companies with an international presence, the way to address compliance matters is to apply the strictest and most advanced laws, rules and regulations to all their worldwide operations. “The aim is to apply a sole set of policies and procedures to the holding company and all its worldwide subsidiaries,” explains Silvia Steiner, Commercial, Competition & Anticorruption Compliance Partner at Osborne Clarke in Spain. This will not only assure the company being legally compliant but also allows for more effective control and follow-up in the implementation of policies and procedures. While the international law firms can rely on their own offices worldwide, many domestic firms tackle the issue of cross border advice by using international networks and alliances to allow them to provide a more complete and global approach to compliance. But a challenge that both frequently face is having to explain to clients that they have to comply with certain rules that don’t exist in their domestic legal systems, adds Reis at PLMJ. Consequently, export compliance is becoming an increasing problem for Spanish companies, particularly

Regulatory Compliance Annual Report

those working in the Middle East, and similar jurisdictions, says Manuel López, Regulatory Finance Partner at Ashurst in Spain, as they are now realising the problems that they might have. When foreign clients are acquiring Iberian companies that are trading internationally, for example, they always question whether these companies are complying with all the necessary rules and regulations worldwide – something that could prove to be a deal breaker. The money and risks involved can be tremendous, as it has the potential to affect the companies, third-parties, exporters, and even banks and insurance companies. Therefore foreign clients are taking compliance very seriously, say lawyers, and domestic companies have to act quickly to ensure they are fully compliant, or risk losing foreign clients. Good business sense The bottom line seems to be that if a client’s core business is affected, then they will pay attention to compliance. Lawyers see that unless clients see an example of the repercussions of non-compliance then many don’t understand why they need to invest. “Portuguese companies don’t want to spend money, and when it comes to compliance they feel that lawyers are selling them things

they don’t need,” says Tiago Félix da Costa, a Litigation and Arbitration Lawyer at Morais Leitão, Galvã Teles, Soares da Silva. “What we need is one big example case and then everyone will understand the consequences of not paying attention.” Furthermore, the size of a company is not a defining factor when it comes to the importance of compliance, but sustainability is, says Armando Martins Ferreira, a Partner at Abreu Advogados. Companies need to be compliance-oriented to be successful in the long run, and better prepared to overcome market stress caused by the pressure of regulators, competitors and clients, and to face new external market opportunities. With increasingly complex regulatory regimes worldwide, and businesses internationalising to mitigate their inactivity domestic markets, clients can no longer take a mostly reactive approach, and must proactively embrace a preventative one. “You need to be compliant by law,” says João Mattamouros Resende, a Corporate/Commercial Partner at Cuatrecasas, Gonçalves Pereira in Portugal, “but there is also a commercial need for it. Compliance just makes good business sense.” Therefore, the rise in reported corruption and fraud cases, and the headline grabbing criminal sanctions currently being faced by directors and employees, means that companies can no longer ignore the issue of compliance.

Committing to compliance Clients are much more aware of their compliance obligations, especially in view of the so-called ‘Commitment Law’, according to Miguel Lorena Brito, Head of Public Law at F. Castelo Branco & Associados. “This Law has been one of the major changes of 2012 and clients are still asking many questions about it.” According to this Law, a public entity cannot enter into a contract without prior budgetary provision and a specific sequential numeric code. “Clients are also responsible for ensuring their contracts comply with these new provisions and regulations,” explains Lorena Brito, “and if they accept noncompliant job orders or awards they are in danger of not getting paid for the goods supplied or the services provided.” The framework for public procurement in Portugal also includes the recent introduction of a unified Entity for Shared Services for Public Administration that supervises most of

the Government and Central Authorities’ purchases. This results from a merger of former procurement agencies, the main being the ANCP– National Agency for Public Procurement. “For many products and services we therefore have a ‘central shopping’ Entity that organises public tenders and approves lists of suppliers and capped prices,” he says. In certain sectors, suppliers now know that they have one opportunity to deal with the Government and if they don’t get listed they can be out of the public sector for two or three years. Reinforcement of the Audit Court’s supervision powers should also be mentioned, as contracts with public and municipal companies above certain amounts are now subject to the Court’s prior clearance. While it’s too early for any criticism, these amendments have been welcomed as creating a more transparent and efficient public procurement system, concludes Lorena Brito.

Miguel Lorena Brito

Los clientes son mucho más conscientes de sus obligaciones en materia de cumplimiento normativo, especialmente teniendo en cuenta la nueva legislación denominada “Ley de Compromiso”, comenta Miguel Lorena Brito de F. Castelo Branco & Associados.

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Regulatory Compliance Annual Report

Environmental balancing act Businesses may not have the financial capabilities to comply with all their obligations

Manuel Gouveia Pereira

Las empresas portuguesas tienen que hacer frente a las obligaciones ambientales y a las consideraciones económicas, dice Manuel Gouveia Pereira de Vieira de Almeida & Associados. Sin embargo, a menudo las empresas no disponen de la suficiente capacidad financiera para poder cumplir con todas sus obligaciones.

Portuguese companies currently need to contend with both changing environmental obligations and economic considerations, says Manuel Gouveia Pereira, Managing Associate of the Environment Practice Area at Vieira de Almeida & Associados. Finding the right balance, he says, is difficult. The desire to cut carbon emissions is a long-held goal of the EU. One central component was the EU Emissions Trading System (EU ETS), a model where greenhouse gas emissions are capped and the surplus emissions traded for cash. The concept was welcomed when it launched in 2005, says Gouveia Pereira, but during the second trading period 2008-2012 things changed due to the surplus of allowances. “As from 2013, the energy sector in Portugal can no longer be awarded CO2 allowances for free but have to go through an auction process,” he explains. ”The system is not working as there is a huge excess of allowances so the value of carbon is very low.” The attitude of most companies regarding emissions to the

environment is to stick to strict pollution compliance levels, resulting in the volume of projects decreasing so as to meet the expectations of the law. To compound matters, Portugal outlined the latest of its Integrated Pollution Control, Compliance and Enforcement laws this year that will put new limits on industrial emissions. “The rules state that companies need to comply with the best practices possible to reduce pollution, from machinery and engines to waste water and chimneys,” Gouveia Pereira adds. “The feasibility of this best practice approach is seldom taken into consideration by the Portuguese authorities, but regardless companies still have to comply.” Gouveia Pereira says businesses may have to spend a lot of money to comply with regulations. “Operators have a huge number of rules to meet but, unlike 10 years ago, they will not all have the financial capability to do so. The environmental euphoria of the 2000s has given way to a new period of ‘post-financial crisis’ reality.”

Fighting tax investigations

Adolf Rousaud

El rápido ritmo de las reformas en el ámbito fiscal implica que las empresas necesitan mantenerse actualizadas en cuanto a la normativa vigente para evitar que infrinjan la ley por desconocimiento de los cambios legislativos, dice Adolf Rousaud de Rousaud Costas Duran.

Businesses have to ensure they maintain adequate and up-to-date tax compliance procedures to avoid falling foul of legislative changes, says Adolf Rousaud, Managing Partner and Head of Corporate at Rousaud Costas Duran in Barcelona. This is mainly due to the rapid pace of reform in the tax arena and the various influences now at play on domestic policy. “Since the onset of the financial crisis, there has been a very noticeable upturn in the number of investigations conducted by the Authorities,” he explains, “and this analysis, particularly of corporate issues, has increased further as the economic situation has deteriorated.” In light of a reduced national tax base, tax evasion and avoidance is now a very political issue and the response by the Spanish Authorities reflects that of governments across Europe. It is adopting a much more aggressive approach to the assessment of tax issues and in the demand for supporting data, says Rousaud.

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“We are seeing a more joined-up approach being taken by the Authorities, improved data sharing between the relevant agencies and greater pressure being placed on banks and institutions to provide financial information to corroborate suspicions. This means that companies engaged in tax evasion have far fewer places to hide.” For legal and tax departments in companies it is not business as usual, he emphasises. There is a much greater demand being placed on companies to produce paper trails to validate transactions, and to demonstrate transparency in the processes utilised to manage their tax affairs. “The Authorities are being very aggressive, the penalties for noncompliance are increasingly severe,” he concludes. “Companies have to be able to prove that they are operating not only within the letter of the law, but more than ever acting also within the spirit of it.”

Regulatory Compliance Annual Report

Air charges on the rise The privatisation of ANA causes concern over changes to aviation regulations After more than 10 years of speculation, Portuguese airport operator Aeroportos de Portugal – ANA was finally privatised at the end of last year. The French infrastructure giant Vinci landed a 95 percent holding in the asset with a bid of more than €3bn, handing it the right to service airports in Lisbon, Porto, the Algarve, Alentejo, Madeira and the Azores. The deal was a boost to Government’s finances, but it has created certain issues when it comes to the regulatory model adopted, says António Moura Portugal, a Partner at ABBC & Associados. “The sale creates something of a paradox, as the old legal model, which was set in stone and fully public, has been replaced by an annex of a private concession agreement.” Additionally, the previous “single till” financing model has been replaced with a “dual till” system, he explains. Under the former, both the airside revenue (such as landing fees and other aviation services) and commercial revenue (such as shops

sales and long-term parking) would be liable to fund the infrastructure. Under the new system, it is only the airside revenue that can be used and “this model will eventually lead to a rise in airport charges”, Moura Portugal claims. “This change needs robust regulation from The National Institute of Civil Aviation of Portugal, and assessment of the fulfilment of quality level requirements for the monopolistic operator.” The main concern already announced publicly is that airlines may stop using Portuguese airports if the prices become too expensive. As ANA holds the main assets, there is little choice, for example, for airlines to select an alternative to Lisbon airport run by a competitor unlike in London. “The Government can’t take airlines for granted,” Moura Portugal warns. “There need to be transparent and objective rules and an independent and accountable regulator.”

António Moura Portugal

La privatización de ANA ha provocado una gran preocupación por los cambios acaecidos en las normas de aviación. El acuerdo fue un impulso para las finanzas del gobierno, pero esto ha causado algunos problemas a la hora de regular la nueva entidad aeroportuaria, dice António Moura Portugal de ABBC.

Comply with me Spanish companies are battling with ever-changing corporate rules to ensure that their business activities are fully-compliant with domestic and international regulations. Paula Álvarez-Ossorio, Director of the Dispute Resolution Department at BDO and lead contact for compliance, identifies three topical issues that Spanish corporates are currently facing. The first two issues involve legislation, namely the 2010 reform of the domestic criminal code, which brought in criminal corporate liability, and the US Foreign Account Tax Compliance Act (FATCA), which will come into force on January 1st, 2014. “FATCA combats tax evasion using foreign financial institutions,” ÁlvarezOssorio explains. “The extraterritorial scope of the FATCA legislation will affect a wide range of players in the financial markets, which will have to adapt to the demanding administrative burden that FATCA has established.”

The third matter is functional. The financial crisis in Spain means affected organisations are now looking to ensure that they are fully-compliant with the new legal and economic rules. Álvarez-Ossorio believes that compliance in Spain is a relatively recent field and still a challenge for companies, law firms and courts due to the lack of local precedents. Spanish companies are therefore looking at the Anglo-Saxon compliance model as best practice for the good management of companies, in order to reduce legal risks. “Any good compliance programme must include the specific risks affecting the company, must respond to change, ensure fairness and should be real and applicable to the whole company,” Álvarez-Ossorio concludes. “It is very important for law firms to train their lawyers to develop and offer complete compliance programmes that are adapted to clients’ needs and requirements.”

Paula Álvarez-Ossorio

El cumplimiento normativo en España es un campo relativamente reciente y sigue siendo un reto para las empresas, bufetes de abogados y tribunales, debido a la falta de precedentes locales, dice Paula Álvarez-Ossorio de BDO.

May / June 2013 • IBERIAN LAWYER •


Regulatory Compliance Annual Report GUIDE TO LEADING LAWYERS Adolf Rousaud, Rousaud Costas Duran Address: Tel: Email: Main practice areas:

Zurbarán 20, 3 planta, 28010 Madrid +34 91 758 39 06 Fax: +34 91 542 15 90 Web: Corporate & M&A, Restructuring & Finance, Real Estate and Regulatory

Alejandro Touriño, Ecija Address: Tel: Email: Main practice areas:

Torre de Cristal, Paseo de la Castellana 259 C, 28046 Madrid +34 91 781 61 60 Fax: +34 91 578 38 79 Web: Regulatory Compliance, Information Technology, Intellectual Property, Privacy and Data Protection

Alfredo Domínguez Ruiz-Huerta, Cuatrecasas, Gonçalves Pereira Address: Tel: Email: Main practice areas:

Almagro 9, 28100 Madrid +34 91 524 71 15 Fax: +34 91 524 71 21 Web: Regulatory, Compliance, Arbitration & Litigation and Criminal Law

Antonio García Muñoz, Lener Address: Tel: Email: Main practice areas:

Paseo de la Castellana 23, 1 Planta, 28046 Madrid +34 91 391 20 66 Fax: +34 91 310 22 22 Web: Mining, Energy & Utilities and Environment

António Moura Portugal, ABBC & Associados Address: Tel: Email: Main practice areas:

Largo de São Carlos 3, 1200-410 Lisbon +351 21 350 36 20 Fax: +351 21 315 94 34 Web: Tax, Aviation, Banking, Regulatory, EU & Competition, Tobacco and Alcohol

Cecilia Pastor, Baker & McKenzie Address: Tel: Email: Main practice areas:

Paseo de la Castellana 92, Madrid 28046 +34 91 391 59 68 Fax: +34 91 391 51 45 Web: Trade & Commercial, Pharmaceuticals & Healthcare and Corporate Compliance

Cláudia Amorim, Sérvulo & Associados Address: Tel: Email: Main practice areas:

Rua Garrett 64, 1200-204 Lisbon +351 21 093 30 00 Fax: +351 21 093 30 01/2 Web: Arbitration & Litigation, Corporate Crime and Regulatory Compliance

Sponsored section: A selection of law firms recommended within the internationally recognised directories and / or by clients.

46 • IBERIAN LAWYER • May / June 2013

Regulatory Compliance Annual Report GUIDE TO LEADING LAWYERS Enrique Marinel-lo Jordan, Monereo Meyer Marinel-lo Abogados Address: Tel: Email: Main practice areas:

Passeig de Gràcia 98, 3r, 08008 Barcelona +34 93 487 58 94 Fax: +34 93 487 38 44 Web: Compliance, Corporate Finance, Derivatives, M&A, Project Finance/PPP, Securitisation and Syndicated Loans

Estibaliz Aranburu, Gómez-Acebo & Pombo Address: Tel: Email: Main practice areas:

Castellana 216, 28046 Madrid +34 91 582 91 00 Fax: +34 91 582 91 14 Web: M&A, Regulatory Compliance, Corporate, Commercial Contracting, Corporate Governance and Restructuring

Jesús Vélez, Kennedys Address: Tel: Email: Main practice areas:

Paseo de Recoletos 27, 7 Planta, 28004 Madrid +34 91 523 72 10 Fax: +34 91 523 72 12 Web: Dispute Resolution, Commercial Litigation, Insurance & Reinsurance, Coverage Disputes, Professional Indemnity, Property & Energy Losses and Transport

Magda Cocco, Vieira de Almeida & Associados Address: Tel: Email: Main practice areas:

Avenida Duarte Pacheco 26, 1070-110 Lisbon +351 21 311 34 00 Fax: +351 21 311 34 06 Web: Telecoms, Privacy & Data Protection, Electronic Communications, Technology and Compliance

Natàlia Martí Picó, Roca Junyent Address: Tel: Email: Main practice areas:

Aribau 198, 08036 Barcelona +34 93 241 92 00 Fax: +34 93 414 50 30 Web: Banking & Finance, Corporate, Family Businesses and Insurance Law

Nelson Raposo Bernardo, Raposo Bernardo Address: Tel: Email: Main practice areas:

Avenida Fontes Pereira de Melo, Edificio Aviz 35, 18, 1050-118 Lisbon + 351 21 312 13 30 Fax: + 351 21 356 29 08 Web: Banking & Finance, Capital Markets, Corporate, M&A, Project Finance, Private Equity, Venture Capital, Projects & Energy

Patricia Manca, PwC Tax and Legal Services Address: Tel: Email: Main practice areas:

Torre PwC, Paseo de la Castellana 259B, 28046 Madrid +34 91 568 42 11 Fax: +34 91 568 54 00 Web: Regulatory Compliance Sponsored section: A selection of law firms recommended within the internationally recognised directories and / or by clients.

May / June 2013 • IBERIAN LAWYER • 47

REgUlatoRy ComplianCE annUal REpoRt GUIDE TO LEADING LAWYERS Paula Álvarez-Ossorio, BDO Abogados Address: Tel: Email: Main practice areas:

Paseo de Recoletos 37-41, 28004 Madrid – San Elias 29-35, 08006 Barcelona +34 91 436 41 95 Fax: +34 91 436 41 93 Web: Corporate Governance, Anti Fraud & Money Laundering, Corporate Criminal Defence, FATCA & Tax Compliance, Data Protection and Regulated Sectors

Rocío Merlino, Islaw Abogados Address: Tel: Email: Main practice areas:

Paseo del Pintor Rosales 44, 28008 Madrid +34 91 522 19 05 Fax: Web: Compliance, Insurance and Shipping

+34 91 523 54 58

Santiago Garrido, Hogan Lovells Address: Tel: Email: Main practice areas:

Paseo de la Castellana 51, 28046 Madrid +34 91 349 82 00 Fax: +34 91 349 82 01 Web: Compliance, Environment, Energy & Natural Resources, Climate Change and Public Procurement

Silvia Steiner, Osborne Clarke Address: Tel: Email: Main practice areas:

Avenida Diagonal 477, Planta 20, 08036 Barcelona +34 93 419 18 18 Fax: +34 93 410 25 13 Web: Commercial and Compliance

Sofia Ferreira Enriquez, Raposo Bernardo Address: Tel: Email: Main practice areas:

Avenida Fontes Pereira de Melo, Edificio Aviz 35, 18, 1050-118 Lisbon +351 21 312 13 30 Fax: +351 21 356 29 08 Web: Regulatory, Compliance, EU & Competition and Shipping

Sönke Lund, Monereo Meyer Marinel-lo Abogados Address: Tel: Email: Main practice areas:

Passeig de Gràcia 98, 3r, 08008 Barcelona +34 93 487 58 94 Fax: +34 93 487 38 44 Web: Arbitration & Litigation, Administrative & Public Law, EU & Competition, Regulatory and Intellectual Property

Tânia Pinheiro, Caiado Guerreiro & Associados Address: Tel: Email: Main practice areas:

Rua Castilho 39, 15, 1250-068 Lisbon +351 21 371 70 00 Fax: +351 21 371 70 01 Web: Arbitration & Litigation, Regulatory Compliance, M&A, Tax and Real Estate

Sponsored section: A selection of law firms recommended within the internationally recognised directories and / or by clients.

48 • IBERIAN LAWYER • May / June 2013




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