Projekt finansowany ze środków NCN, realizowany od 11 stycznia 2017 r. do 10 stycznia 2020 r.
Corruption is one of the factors that threatens the foundations of the free market and the common values underlying modern societies, leading to the destruction of social bonds. The obligation to prosecute corrupt acts stems not only from national law, but also from international law (UN, Council of Europe, OECD acts) and European Union law. Corrupt practices may be punishable by both natural persons and legal persons, as well as business entities (in Poland on the basis of the Act on the liability of collective entities for acts prohibited under penalty). Criminal repression alone, however, is no longer an effective tool for curbing corruption. A corruption relationship is, by its very nature, secret and as long as both parties benefit from it, they have no reason to review or break it.
It has been widely argued that preventive measures can be more effective in fighting corruption. They consist in building clear decision-making procedures in the public and private sector, shaping the rules of establishing and conducting relations between representatives of the private and public sector, and avoiding discretionary decision-making. One of the significant elements of global anti-corruption prevention in recent years has been compliance programmes, which allow – especially for private sector entities – avoiding accusations of corruption by demonstrating that internal anti-corruption procedures have been respected.
Compliance programmes are internal programmes implemented by businesses in the private sector, but also increasingly in the public sector, to ensure compliance with applicable laws, including criminal compliance.
At the same time, establishing compliance programmes is an important element of globalisation processes in the normative sphere. In the last few decades, the world has witnessed exceptionally intensive and far-reaching changes in the structure and social relations, technology, and culture. The process of these changes, which is collectively called globalisation, affects more and more, if not all, spheres of economic, political and social life.
It seems that the most profound globalisation processes are taking place in the economic sector, where they are geared towards the creation of a global economic system, wherein a fundamental role is played by transnational corporations (economic entities operating in many countries), which often employ from several to several hundred thousand employees around the world, citizens of various countries. Transnational corporations largely shape the actual course of globalisation processes. However, they are liable, as legal persons, for breaches of the law, including breaches involving a combination of criminal offences. This liability arises under national law and is prescribed in numerous binding international and EU instruments. In order to defend themselves against this liability, large business entities, such as corporations with international business (especially US corporations), have begun to implement internal programmes to ensure that their operations comply with applicable law. These programmes are called compliance programmes.
Compliance programmes are part of a growing trend of self-regulation by legal entities, which involves adopting rules of conduct applicable to various areas of business (promoting ethical values in business: business ethics or corporate social responsibility).
Compliance programmes essentially cover different spheres, but have two essential features in common. First, they aim to ensure that employees of a given corporation act in a manner consistent with the law and with the standards and culture defined by that corporation. This suggests that the behaviour of employees in transnational corporations is governed by legally binding rules (hard law, national, international and European Union), legally non-binding rules (soft law, which is not the law in the classical positivist sense but undoubtedly forms a normative system, constituting one of the transnational levels of regulation and contributing to the development of legal pluralism in the world) and rules, standards and organisational culture that are not defined by law. All these normative layers are equally covered by compliance programmes.
Secondly, compliance programmes are preventive, as their long-term goal from a legal perspective is to prevent a business entity from being held liable for a breach of law (criminal offence) by demonstrating that an individual’s specific behaviour was purely motivated by internal motives and not part of the policy of the business entity as a whole. The starting point for the research under this project is the hypothesis that with the progress of globalisation and the expansion of transnational corporations, these internal norms of conduct, adopted by private entities as compliance programmes, are becoming binding rules of conduct for an increasing number of people in the world, thus creating a new sphere of regulation, a set of norms complementary to traditional normative systems, such as statute law. From the point of view of the study of comparative law, this new sphere of regulation contributes to the development of legal pluralism, while from the point of view of criminal law, it becomes an important tool for criminal prevention.
The second research hypothesis, on the other hand, concerns the effectiveness of compliance programmes in preventing crimes, especially corruption. The compliance policy is spreading among more and more business entities, not only in the private sector, where it originated, but also in the public sector. Public business entities also seem to consider it as a good instrument for shaping the behaviour of employees and the internal organisational structure, which helps to avoid the undesirable consequences of criminal behaviour. The process of popularising compliance programs and the growing importance of anti-corruption prevention is universal, as it occurs both globally and in Poland.
The project therefore intends to show compliance as a new normative trend in statu nascendi and to demonstrate its role as an important tool in preventing corruption, as well as to formulate guidelines for the development of effective compliance programmes by Polish business entities and public administration entities which abide by Polish anti-corruption law.
The main objective of the project is to critically analyse the new normative phenomenon of compliance programmes from the viewpoint of their role in deterring crime, especially corruption. The project has the purpose of analysing compliance programmes from the theoretical and legal, empirical and practical perspectives in an attempt to formulate guidelines for designing a compliance programme in line with Polish anti-corruption law.
The project will be interdisciplinary. Theoretical and empirical analysis (interviews and questionnaires) will be conducted as part of the project. The proposed research problem has not been examined in the Polish penal (and even more broadly, legal) literature; in fact it remains unnoticed. However, it arouses the interest of researchers in the world. Therefore, it is advisable to analyse it within the framework of Polish law. The project is innovative, as it integrates reflections on globalisation processes, compliance and corruption. In particular, the planned study provides a unique opportunity to examine normative processes taking place in a completely new sphere of regulation: compliance is not included in the classic notion of law, but also constitutes an unquestionably new normative sphere. The project will increase knowledge in several areas (legal pluralism, relations between globalisation and criminal law, and anti-corruption prevention).
Importance of research for the socio-economic sphere
The project also has a very important practical significance: conclusions on compliance theory and its role in anti-corruption prevention formulated from theoretical and empirical research will enable the drafting of recommendations on building a compliance programme for entities operating in Poland. The possibilities of applying the findings in practice will include both private and public sector actors. As part of the Government Anti-Corruption Program for 2014–2019, more intensive prevention and anti-corruption education is envisaged, as properly raised awareness of the harmfulness of corruption constitutes a foundation which allows for permanent reduction of the incidence of this social ill. Moreover, one of the goals of the Government Anti-Corruption Policy is to promote anti-corruption solutions in business or to review and strengthen legal and organisational mechanisms ensuring transparency in the private sector. Thus, the tasks of the public administration within the framework of the GACP are in fact convergent with the objectives of compliance programmes implemented by transnational corporations. This means that the publications resulting from the research work and, more broadly, the entire project will be part of the implementation of the Government Anti-Corruption Programme for 2014–2019.
The results of the project are an important substantive contribution to the lectures conducted by Celina Nowak, PhD, Prof. INP PAN at the Postgraduate Course on Anti-corruption Law at INP PAN (anti-corruption law, compliance policy) and lectures on anti-corruption and compliance policy conducted at Kozminski University (29 May 2018, 6 June 2018).
A form of popularisation of the research conducted under the grant was the speech entitled “Ethics in a company: does this pay off?”, delivered during the Economic Forum in Krynica Zdrój, 5 September 2018.