Companies can now take advantage of conditional waivers of criminal prosecution

A court or, during preliminary proceedings, a public prosecutor may grant a conditional waiver of criminal prosecution if the results of the proceedings sufficiently demonstrate that the act occurred, constitutes a criminal offense, and was committed by a legal entity. The company must agree to this procedure, compensate for the damage or take steps to do so, return any unjust enrichment, commit to corrective measures, and pay a specified amount to assist victims of crime. In more serious cases, the company may also commit to refraining from certain activities for a specified period or to developing and implementing an effective set of preventive and corrective measures.

It is precisely in connection with these measures that a monitoring person comes into play. This person may be, in particular, an attorney or an auditor specializing in monitoring the implementation of compliance and corrective measures. The legal entity shall submit to the court or the public prosecutor a list of three potential monitoring persons and their monitoring plan; it may select only from among those approved by the authority. The monitoring person must submit a report on the performance of the monitoring at least once a year, and the company must provide the necessary cooperation and cover the costs. The amendment thus reinforces the importance of internal control mechanisms, as a functional compliance program will no longer be important solely for the prevention of criminal activity but may also influence the course and outcome of criminal proceedings against the company.