What is compliance?

Compliance is the set of measures aimed at making actions taken by an organisation in accordance with the standard applicable to the one in question.here.

These measures generally include the acquisition of basic documentation, the implementation of adequate training tools and, where applicable, the appointment of a responsible person whose mission content is generally precisely defined, as well as the updating of these elements following the adaptation of the legal framework.

Unilateral obligation or commitment

Compliance can be the result of a legal obligation or an organisation’s own initiative.

Obligation

From time to time, the start of an activity is subject to the acquisition of a particular title or approval, the granting of which is itself subject to the compliance of the organisation concerned with a number of criteria.  In other cases, the obligation exists as soon as a company carries out activities covered (e.g. in the case of the DPMR, as soon as the organisation processes data).

Here are a few examples in Belgian law:

  • companies processing data have an obligation to comply with the GDPR ;
  • a company employing staff must have Work Regulations (arbeidsreglement / règlement de travail) ;
  • businesses must comply with consumer protection legislation;
  • companies operating in the electricity market must obtain an electricity supply licence, with some exceptions;
  • insurance or banking intermediaries are obliged to comply with the applicable prudential rules;
  • all companies are subject to filing, publication and/or notification formalities (e.g. filing of annual accounts, etc.), which may vary from case to case in the evolution of the company (e.g. beyond a certain stage of development, not-for-profits  are subject to greater accounting obligations, or notification obligations of related entities).

Own initiative

If there is no obligation, the organisation can freely decide to commit itself to certain standards that it sets itself or that are pre-established by an organisation.  This is normally the case for adherence to codes of conduct of professional organisations.

Here are a few examples:

  • Assuralia
  • code of conduct for direct sales
  • a corporate governance code

These codes of conduct are normally non-mandatory documents as they are not established by the usual legislator.  However, the code of economic law makes mandatory those codes of conduct to which an organisation has adhered.  Furthermore, some codes of conduct are made mandatory by the fact that they are considered by the case-law as constituting good practice in the sector concerned or by a regulatory act of the legislator making them mandatory.

Compliance: an opportunity

Compliance should be seen as an opportunity, for established companies but also for starting a business, for the following reasons :

  • minimise the risk arising from legal uncertainty caused by discrepancies between the norm and behaviour (questioning of rules, litigation, fines).  For instance, a corporate housekeepting policy can help your staff  understand what they should do ;
  • create and develop compliance processes and a culture of compliance, particularly when launching a new activity ;
  • to communicate on compliance with the law in a sector where the reputation of an organisation is or may be questioned by public opinion and/or the media or to prove their difference from similar organisations;
  • in sectors that are poorly regulated or not yet regulated, because they are innovative, spontaneous self-regulation is often the best way to delay or even avoid interference by the legislator, or to create standards that will then often be the basis for future legislation.

Each company is unique.

Rules must be established that are rooted in the company culture.

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Publié le 26 septembre 2018
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