/ Sernac published an interpretative circular letter on compliance plans
October 15, 2020It is recommended that suppliers, whose business is directly related to consumers, have compliance plans to guard against possible violations and to promote a culture of compliance within the company.
Associate Attorney
Alessandri
On September 30, 2020, the Chilean National Consumer Service (Sernac) published the interpretative circular letter on the procedure for approving compliance plans.
This circular letter seeks to establish general procedures for approving a compliance plan by Sernac. It sets out requirements, procedures, the validity of the plan, publicity and the treatment of the information provided.
To be approved, a compliance plan must include the content stated by Law 19,496 and other regulatory and administrative rules governing the matter. Likewise, it must address the contents of the INN/ET1 Technical Specification Compliance plans for the protection of consumer rights. An affidavit from the applicant supplier’s representative on the truthfulness of the information attached must be attached.
Need to have an appropriate body for certification.
In relation to the certification bodies, the circular letter introduces the need for a suitable impartial body to certify the compliance plan.
This impartiality is given in three senses, in that the certification cannot be commissioned:
a) To the same supplier to whom the certifying entity, or a person related to it, provided advisory or consulting services for the purposes of designing or implementing its compliance plan with consumer rights protection standards.
b) To the supplier that belongs to the same business group to which another supplier is a party, to which the certification entity provided advisory or consultancy services for the purposes of the design or implementation of its compliance plan with consumer rights protection standards.
c) To the supplier that belongs to the same corporate group as the certification body.
The certifying bodies shall be incorporated in a register that shall be public and shall contain the following information:
– Date of incorporation to the register.
– Identification of the entity.
– The fact that its registration is in force or suspended.
This registration shall be valid for 12 months from its date of incorporation and to renew it, the certifying body shall prove to Sernac the circumstance of having been accredited by the National Institute of Standardization (INN) as an inspection body or verification entity in accordance with the Chilean standard ISO 17.020.
Entities included in this register and that have certified a compliance plan presented to Sernac for approval shall not be required to attach background information that demonstrates their suitability.
Procedure for approval of a compliance plan
This circular letter includes two procedures for approval of a compliance plan. The applicant must download the form from the institutional website and submit it to one of Sernac’s offices. Together with the form, the compliance plan and other documents that may be established by an administrative act of Sernac, must be attached.
The procedures are:
A) Shortened procedure
Once the application has been submitted for approval, Sernac shall make its decision within up to 6 months from the day following it is submitted to the office. It must be accompanied by the following documents:
– Authorized copy of the certificate issued by an entity verifying that there is a compliance plan in accordance with Law No. 19,496.
– Certification report of the respective plan.
– Information from the verification body.
– Information of the professional responsible for the certification process.
If a compliance plan contains any omissions or requires correction, these must be remedied within 30 business days. The request for rectification shall be notified by e-mail to the provider and shall suspend the term of the approval procedure from the day after it is sent. On the contrary, if it is not rectified within the indicated period of time or these are not sufficiently rectified by the applicant, the request shall be rejected. The deadlines are administrative business days, being suspended on Saturdays, Sundays and holidays.
B) General procedure
When approval is requested for a compliance plan that does not qualify for the shortened procedure, Sernac must request technical reports to comply with the principle of impartiality mentioned above. These technical reports should deal with a detailed analysis of the compliance plan submitted.
The Service shall prioritize those compliance plans that it is responsible for reviewing in accordance with this procedure, following the criteria of technical, teleological, necessary and proportional. This prioritization shall be carried out between the months of March and August each year with the applications received up to the last day of the month prior to such months.
The applications not prioritized shall be incorporated to the applications received later to be considered, together with those, in the following prioritization process.
The general procedure itself shall begin once the Service receives the technical report, which shall notify the applicant of this situation. Once initiated, the Service must approve the compliance plan within a maximum of 6 months from the day following the notification of initiation.
In case it is required to rectify it, the above mentioned provisions for the shortened procedure shall apply.
Approval of a compliance plan
The approval of a compliance plan may be valid for up to 24 months from the date of the approval act. In order to renew it, the effective implementation and follow-up of the plan in the time following the approval must be accredited, in the form and conditions that shall be established in the act that the Service shall dictate for such purpose and/or in the regulations applicable to it.
Once approved, Sernac shall publicize the approvals and maintain a list available on the institutional website that shall contain the identification of the supplier, the number and date of the act approving the plan and its validity.
Importance of having a compliance plan related to Article 24, paragraph 4(c).
Its importance lies not only in the possibility of being able to count within the framework of a procedure for infringement of consumer protection rules with the mitigation of substantial collaboration, but also to promote a culture of compliance within the company focused on the protection of consumer rights. This considers the determination of the degree of compliance, the creation of a risk matrix, the creation and development of advertising protocols, pricing, certifications, customer service, among others, according to the industry and processes of each supplier.