Business Crime Update | January 2018

Written on 11 Jan 2018

 

Welcome to 2018, which I hope will be a year that will bring you interesting, forward-thinking and profitable work.

As enforcement agencies globally continue to focus on corporate practices, the Osborne Clarke business crime team is committed to keeping you updated with developments that might affect your business across all the jurisdictions in which we practice.

Reflecting the multi-jurisdictional element of business crime issues, we recently conducted a pan-European bribery risk review for a significant digital information provider in the real estate sector that saw us provide assistance in France, Germany, Italy, Spain and the UK, an instruction that well underscored the growth of Osborne Clarke’s international business crime team.

2018 looks set to be an interesting year in the UK, and we start this Newsletter with a look at six themes that we expect will drive the agenda in business crime over the next 12 months.

In France the keenly awaited Sapin II legislation is now in force, and we examine the new whistleblowing provisions that this law contains. Italy also now has in force new whistleblowing provisions which took effect on 29 December 2017; we analyse those provisions and what they may mean going forward. Continuing our European theme, we also examine how German data privacy provisions impact on internal investigations and recent changes that should assist with future investigations. Further afield, new data privacy provisions are also anticipated in India during 2018, which colleagues at BTG Legal in Mumbai will cover later in the year.

Returning to the UK, the end of 2017 saw much media coverage relating to modern slavery. We expect this to be a continuing theme in 2018 and so include an overview of the UK’s Modern Slavery Act.

We conclude this first Newsletter of the year with a feature on the new corporate self-reporting system launched by HM Revenue & Customs to facilitate the investigation of the corporate failure to prevent the facilitation of tax evasion offence. This offence has now been in force since 30 September 2017, and it is possible that 2018 will see the first prosecutions using the new legislation.

 

What’s on the agenda for 2018 in business crime?

The last 12 months have seen significant developments in the enforcemnt of business crime, including important new legislative measures such as the failure to prevent the facilitation of tax evasion offence, unexplained wealth orders and new anti-money laundering regulations. Over the next 12 months, it is likely that the legal burden on corporates to prevent corporate crime will continue to grow and be supported by an increasingly aggressive response to potential breaches of business crime laws.

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France | A new whistleblowing regulation as of January 2018

While members of the European Parliament are calling for a whistleblowing program to protect whistleblowers who contribute to protect the EU financial interests, France recently enacted the Sapin II Act on transparency, tackling corruption and modernisation of business life. The detailed new legislation imposes a specific obligation on companies with more than 50 employees to ensure they have in place a whistleblowing programme that complies with certain requirements.

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Italy | Whistleblowing law adopted at last

After more than a year of parliamentary debate, a new whistleblowing law has been passed in Italy. The law introduces protections particularly for public servants and employees of companies that are publicly owned or supply to the public sector. Private companies that operate a “Model 231” programme will need to make changes to incorporate protections for whistleblowers.

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Germany | Internal investigations: exclusion of evidence obtained contrary to German Federal Data Protection Act

Complying with German data protection laws can be challenging when it comes to internal investigations where there is a suspicion of employee wrongdoing. Employers should take note of guidance in a German Federal Labour Court decision as to whether given investigative measures may be justified.

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Modern slavery | continuing worldwide focus

Modern Slavery remains a high priority in the UK and across the world and it is receiving continued attention in the popular media. In this context, and given the moral imperatives, it is important that businesses are complying with their obligations and are aware of the developing UK Modern Slavery legislation and guidance.

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UK | New HMRC corporate self-reporting process

The new corporate offence of failing to prevent the facilitation of tax evasion renders businesses criminally liable if they fail to prevent those acting on their behalf from facilitating tax evasion. The offence carries an unlimited fine on conviction.

Simultaneously to the offence coming into force HMRC issued guidance on how a business can self-report its own failure to prevent the facilitation of UK tax evasion.

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