Law No. 21.595, known as the Economic Crimes Law, has been enacted and published, officially entering into force as of August 17, 2023. This new legislation, designed as a solid response in the fight against corruption and illicit practices in the economic sphere, marks an important milestone in the regulation of these issues.
Highlighting its main modifications
1. Expansion of the catalog of economic crimes: The new law introduces an innovative classification into four categories, ranging from financial crimes to tax, labor and environmental offenses.
2. A renewed sanctions regime: The regulation establishes a system of differentiated sanctions and specific criteria for economic crimes. This involves measures such as the confiscation of profits derived from illicit activities, accessory sanctions that impact on public offices and executive functions, as well as a unique method for calculating fines based on the previous income of the offender.
3. Innovation in types of crimes: The law introduces new criminal offenses such as misappropriation of professional secrets, violation of commercial secrecy, environmental crimes, computer fraud and wage fraud. These additions reflect the evolution of criminal practices in the economic sphere.
4. Expansion of criminal liability of legal persons: The scope of liable legal persons is expanded to include corporations, state universities, companies created by law, political parties and religious legal persons under public law. In addition, the range of crimes attributable to these entities is expanded to cover all economic crimes systematized in the law.
5. Modifications to the criminal liability of legal persons
The concept of responsible legal persons is broadened to include State corporations and universities, companies created by law, political parties and religious legal persons under public law. In addition, the range of crimes attributable to the criminal liability of legal persons is increased, as all economic crimes systematized in the law will be included.
The supervision of the legal person is incorporated as a new penalty and precautionary measure, if necessary for the purpose of preventing the perpetration of new crimes, and it is established that the liability of the legal person is autonomous and independent from the criminal liability of the natural person.
Crime prevention model as an exemption from criminal liability. The crime prevention model becomes more important, since an effectively implemented model would allow exempting the legal person from criminal liability.
The law states that a crime prevention model effectively implemented by the legal person will be understood as adequate for the purposes of exempting it from criminal liability when, to the extent required by its corporate purpose, line of business, size, complexity, resources and the activities it carries out, it takes serious and reasonable consideration of the following aspects:
• Identification of the activities or processes of the legal entity that imply risk of criminal conduct.
• Establishment of protocols and procedures to prevent and detect criminal conduct, which must necessarily consider secure channels for reporting.
• Assignment of one or more persons responsible for the application of such protocols.
• Periodic evaluations by independent third parties and mechanisms for improvement or updating based on such evaluations.
Consequently, it will not only be necessary to make formal changes in the existing documents of each company, but also an exhaustive examination of the activities carried out that could lead to the commission of any of the economic crimes contemplated in the law.
Importance of the entry into force.
It is important to consider that the provisions enter into force as of August 17th,2023 with the exception of the provisions of article 60 of the same law, which states:
Antitrust and Competition Rules
Legal persons will not be criminally liable for the crime of collusion, as long as the legislator does not coordinate the concurrence of the different penalties, sanctions and measures that may be applicable to a legal person for the commission of this crime, regulated in Decree Law 211, which establishes Rules for the Defense of Free Competition.
Amendments to Law No. 20.393
With respect to the amendments to Law No. 20.393 on Criminal Liability of Legal Entities, they shall only be understood to be in force as of the first day of the thirteenth month following their publication.
Supervisor of the legal person
Finally, with respect to the incorporation of the subjection to a supervisor applicable to legal persons, either as a precautionary measure or as a penalty, due to the inexistence or serious insufficiency of an effective crime prevention system, although it is subject to the deferred validity indicated above, its application will also be subject to the issuance of a regulation. Such regulation must be issued within one year from the date of publication of the Law in the Official Gazette.