The international conventions relating to anti-bribery and anti-corruption to which Spain is a signatory are as follows.

• United Nations Convention against Corruption, signed on 16 September 2005 and ratified on 19 June 2006.
• Council of Europe:
1. Criminal Law Convention on Corruption (ETS 173): signed on 10 May 2005, ratified on 28 April 2010 and entered into force on 1 August 2010.
2. Additional Protocol to the Criminal Law Convention on Corruption (ETS 191): signed on 27 May 2009, ratified on 21 January 2011 and entered into force on 1 May 2011.
3. Civil Law Convention on Corruption (ETS 174): signed on 10 May 2005, ratified on 16 December 2009 and entered into force on 1 April 2010.
• Organisation for Economic Co-operation and Development: Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, ratified on 14 January 2000 and entered into force on 14 March 2000.

All the offences linked to corruption behaviours are included in the Spanish Criminal Code.

There are no official guidelines for interpreting and enforcing national legislation in Spain.

Due to the structure of legal sources within the Spanish Rule of Law, the rulings of the Second Chamber (Criminal) of the Supreme Court serve as the only valid reference guidelines.

Rodriguez Ramos Abogados publishes, with Wolters Kluwer, a comprehensive guide updated monthly, which includes all relevant and updated rulings of the Supreme Court necessary for interpreting the entire Spanish Criminal Code (CC).

There has been a recent legislative change (LO 4/2024, published 19 October 2024, and entered into force on 8 November 2024) to the Spanish criminal legislation referring to the effect of final convictions by other EU member states against the same person for different acts which will have, in a new criminal proceeding, the same legal effects as final convictions handed down in Spain.

This can have special consequences to establish the limit for effective time of imprisonment (Articles 73 and 76 CC).

As part of the negotiations to form a new Spanish government following the general elections in July 2023, independent Catalan political parties demanded, as a condition for supporting the re-election of the Prime Minister, the passage of an amnesty law to eliminate their declared legal responsibilities and ongoing investigations related to crimes such as misappropriation of public funds, disobedience, and breach of official duty, connected to the independence movements from 2011 to 2023.

Once both parties reached an agreement, the Prime Minister was re-elected on 16 November 2023 and on 11 June 2024, the Organic Law 1/2024 on Amnesty for Institutional, Political, and Social Normalisation in Catalonia was published.

Since the approval of the Spanish Constitution in 1978, no amnesty for criminal responsibilities has been enacted, and the implementation of this Amnesty Law has sparked profound debates regarding its constitutional basis, particularly its potential incompatibility with the principle of equality before the law.

The Amnesty Law is facing several challenges.

• Its application to the ongoing investigations of independence leaders by courts, including the Spanish Supreme Court.
• The request for the declaration of unconstitutionality of the law, filed before the Constitutional Court by the Spanish Supreme Court and various other entities.

Bribery is defined as follows:

• with reference to the national public sector, as any gift, favour, or retribution of any kind, offer or promise (Articles 419, 420 and 422 CC); and
• with reference to the private sector and international public procurement, as unjustified benefit or advantage of any nature (Articles 286 bis and 286 ter CC).

There is not a specific definition of corruption, but the term is used to systematically embrace bribery affecting the private sector (Article 286 bis CC) and foreign public bribery affecting public procurement (Article 286 ter CC), assuming the terminology of the Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector and of the United Nations (UN) Convention against Corruption, adopted by the UN General Assembly on 31 October 2003, by Resolution 58/4.

Spanish law incriminates both public and private bribery and corruption conduct carried out nationally and internationally by natural and legal persons.

• Bribery and corruption related to the public sector.
1. Affecting national public administration:
1. improper influence over public officials and authorities (by other public officials or authorities – Article 428 of the Spanish Criminal Code, CC – or by a non-public person – Article 429 CC);
2. bribery of public officials and authorities to engage in improper conduct (both the public official who promotes or receives it – Article 419 CC – and the private individual who promotes or pays it – Article 424 CC), to gratify proper conduct (Articles 420 and 421 CC), due to his public condition (Article 422 CC); 
3. misappropriation of public funds, including the misappropriation of public assets (Article 432 CC), their use for private purposes (Article 432 bis CC) or for a purpose different from the one intended (Article 433 CC), with a new regulation which entered into force in January 2023;
4. fraud in public procurement (Article 436 CC); and
5. actions not falling under the previous provisions, but involving unfair decisions in public functions incompatible with any admissible interpretation of the law (prison linked when considering judges resolutions (Article 446 CC); not prison linked but disqualification for public responsibilities in any other case (Article 404 CC).
2. Affecting foreign public administrations.
1. bribery of foreign officials and authorities in economic operations (public procurement) with disruption of competition (Article 286 ter CC); and
2. in the national sphere, against acts of bribery (Article 427 CC), improper influence (Article 431 CC), and misappropriation of public funds (Article 435 CC) involving officials of the European Union of any European Union country or any other foreign country (Article 427 CC).
• Bribery and corruption related to private sector scopes bribery of administrators, executives, and employees of companies (Article 286 bis CC) and of sports entities, athletes, and referees to manipulate the outcome of highly significant sports competitions (Article 286 bis CC).

Movements and transformations of funds or assets can also lead to additional criminal liability through money laundering crime, if it is determined that they were intended to conceal or cover up their illicit origin or to assist the person involved in the offence in evading the legal consequences of their actions (Articles 301–304 CC).

The improper influence over public officials and authorities by other public officials or authorities or non-public persons is criminalised nationally (Articles 428 and 429 CC) and internationally (foreign public officials influence-peddling, Article 477 CC).

The CC contains two different offences relating to inaccurate corporate books and records and/or dissemination of false information.

• Article 290 CC, which permits the imposition of up to three years of imprisonment on those who falsify the accounting or any other documents that should reflect the legal or financial situation of the entity, in a way that could cause economic harm to the company, one of its partners, or a third party.
• Article 282 bis CC, which permits up to four years of imprisonment for those who issue securities traded in the securities markets, falsify the economic-financial information contained in the prospectuses for any financial instruments, or in the information that the company is required to publish and disseminate under securities market legislation regarding its resources, activities, and present or future business, with the aim of attracting investors or depositors, placing any type of financial asset, or obtaining financing by any means.

Misappropriation of public funds is considered a criminal behaviour, with a new regulation having entered into force in January 2023 (LO 14/2022, published on 23 December 2023, and entered into force on 12 January 2024) including:

• misappropriation of public assets (Article 432 CC);
• use of public assets for private purposes (Article 432 bis CC); and
• use of public assets for a purpose different from the one intended (Article 433 CC).

Fraud in public procurement is also punished, including:

• conspiring with interested parties or using any other means to defraud a public entity (Article 436 CC); and
• demanding fees, charges, or tariffs that are not due or in amounts greater than those legally specified (Article 437 CC).

Also introduced by the Organic Law 14/2022 (published on 23 December 2022, and entered into force on 12 January 2023), any authority who, during the performance of their function or position and up to five years after leaving them, has obtained an increase in assets or a cancellation of obligations or debts valued at more than EUR250,000 in relation to their accredited income, and openly refuses to comply with the requirements of the competent authorities aimed at verifying their justification, shall be punished with imprisonment for a period of six months to three years.

There is no specific provision for intermediaries, but non-public persons:

• can be considered a necessary collaborator (Article 28 CC) or accomplice (Article 29 CC) of the crimes committed by the public servant (with possible reduction of the imprisonment period; Article 65.3 CC); and
• can be specifically considered as authors of:
1. improper influence over public officials and authorities (Article 429 CC);
2. bribery of public officials and authorities to engage in improper conduct, who promotes or pays it (Article 424 CC), to gratify proper conduct (Article 421 CC) or due to their public position (Article 422).

There is no national legislation approved regarding lobbying activities. In 2022, the government proposed a Law on Transparency and Integrity in the Activities of Interest Groups that has not been approved.

The parliaments of different regions of Spain have passed specific laws for their territories.

• Aragón –  Law 5/2017, of June 1, on Integrity and Public Ethics.
• Asturias – Law 8/2018, of September 14, on Transparency, Good Governance, and Interest Groups.
• Castilla-La Mancha – Law 4/2016, of December 15, on Transparency and Good Governance of Castilla-La Mancha; Agreement of 9 May 2017, from the Governing Council, establishing the obligation to publish the agendas of senior officials and equivalents within the Administration of the Junta de Comunidades de Castilla-La Mancha and its autonomous bodies; Decree 7/2018, of February 20, from the Presidency of the Junta, approving the Ethical Code for Senior Officials or Equivalents of the Administration of the Junta de Comunidades de Castilla-La Mancha; and Decree 8/2018, of February 20, from the Presidency of the Junta, creating and regulating the Interest Groups Registry of Castilla-La Mancha.
• Cataluña – Law 19/2014, of December 29, on Transparency, Access to Public Information, and Good Governance; Decree 171/2015, of July 28, on the Interest Groups Registry of the Administration of the Generalitat and its public sector; Resolution JUS/2104/2015, of September 21, from the Department of Justice, approving the models of electronic forms for registration/amendments of interest groups in the Interest Groups Registry of the Administration of the Generalitat and its public sector, and establishing the conditions for their submission; Agreement GOV/82/2016, of June 21, approving the Code of Conduct for Senior Officials and Management Personnel of the Administration of the Generalitat and its public sector entities, and other measures regarding transparency, interest groups, and public ethics; and Decree 244/2021, of June 19, from the Department of the Presidency, modifying Decree 21/2021, of May 25, which establishes the creation, naming, and determination of the scope of competence of the departments of the Administration of the Generalitat of Catalunya.
• Madrid – Law 10/2019, of April 10, on Transparency and Participation of the Community of Madrid.
• Guipúzcoa – Foral Law 4/2019, of March 11, on Good Governance within the Framework of Foral Public Governance; and Foral Law 13/2022, of September 13, which creates and regulates the Interest Groups Registry of the Foral Council of Gipuzkoa and its public sector.
• Navarra – Foral Law 5/2018, of May 17, on Transparency, Access to Public Information, and Good Governance; and Foral Law 7/2018, of May 17, on the Creation of the Office of Good Practices and Anti-Corruption of the Foral Community of Navarra.
• Valencia – the Valencian Community; Resolution of 11 February 2022, from the Department of Participation, Transparency, Co-operation, and Democratic Quality, creating electronic seals for automated administrative actions of the Interest Groups Registry of the Generalitat; Resolution of 11 February 2022, from the Department of Participation, Transparency, Co-operation, and Democratic Quality, declaring the availability of the software application supporting the Interest Groups Registry of the Generalitat, for implementation in accordance with the provisions of Decree 172/2021, of October 15, from the Consell, which develops Law 25/2018, of December 10, regulating the activity of interest groups in the Valencian Community; and this same Decree 172/2021, of October 15, from the Consell.

General limitation periods for crimes are stabilised at the Spanish Criminal Code (Articles 131 and 132 CC):

• 20 years, if the penalty exceeds 15 years of imprisonment;
• 15 years if the penalty:
1. exceeds ten but not 15 years of imprisonment; or
2. exceeds ten years of disqualification;
• ten years, if the penalty exceeds five but not ten years of imprisonment or disqualification; and
• five years, in other cases.

The following crimes have certain time limits to be prosecuted:

• improper influence over public officials and authorities:
1. by other public officials or authorities (Article 428 CC) – two years of imprisonment and nine years of disqualification, with a limitation period of ten years; and
2. by a non-public person (Article 429 CC) – two years of imprisonment, with a limitation period of five years;
• bribery of public officials and authorities:
1. to engage in improper conduct:
1. public official who promotes or receives it (Article 419 CC) – six years of imprisonment and 12 years of disqualification, with a limitation period of 15 years; and
2. private individual who promotes or pays it (Article 424 CC) – six years of imprisonment, with a limitation period of ten years;
2. to gratify proper conduct:
1. public official who promotes or receives it (Article 420 CC) – four years of imprisonment and nine years of disqualification, with a limitation period of ten years; and
2. private individual who promotes or pays it (Article 424 CC) – four years of imprisonment, with a limitation period of five years;
3. due to their public position:
1. public official who promotes or receives it (Article 422 CC) – one year of imprisonment and three years of disqualification, with a limitation period of five years; and
2. private individual who promotes or pays it (Article 424 CC) – one year of imprisonment, with a limitation period of five years;
• misappropriation of public funds:
1. of public assets (Article 432 CC) – eight years imprisonment and 20 years of disqualification, with a limitation period of 15 years;
2. use for private purposes (Article 432 bis CC) – three years of imprisonment and four years of disqualification, with a limitation period of five years;
3. use for a purpose different from the one intended (Article 433 CC) – four years of imprisonment and six years of disqualification, with a limitation period of ten years;
• fraud in public procurement (Article 436 CC) – six years of imprisonment and ten years of disqualification, with a limitation period of ten years;
• bribery of foreign officials and authorities in economic operations (public procurement) with disruption of competition (Article 286 ter CC) – six years of imprisonment, with a limitation period of ten years;
• bribery of administrators, executives, and employees of companies (Article 286 bis CC) – four years of imprisonment and six years of disqualification, with a limitation period of ten years;
• bribery of sports entities, athletes, and referees to manipulate the outcome of highly significant sports competitions (Article 286 bis CC) – four years imprisonment and six years of disqualification, with a limitation period of ten years;
• money laundering (Article 301) – six years of imprisonment, with a limitation period of ten years;
• falsification of accounting or any other documents that should reflect the legal or financial situation of the entity (Article 290 CC) – three years of imprisonment, with a limitation period of five years; and
• falsification of the economic-financial information contained in the prospectuses for any financial instruments (Article 282 bis CC) – six years of imprisonment, with a limitation period of ten years.

Spanish criminal jurisdiction is set out in Article 23 of the Organic Law of the Judicial Power, which settles the following.

• The jurisdiction to prosecute crimes committed in Spanish territory or committed on board Spanish vessels or aircraft (respecting provisions of international treaties to which Spain is a party).
• The jurisdiction to prosecute crimes committed abroad by Spanish citizens if (cumulative):
1. the act is punishable in the place of execution;
2. the aggrieved party or the Public Prosecutor’s Office files a complaint before the Spanish courts; and
3. the offender has not been acquitted, pardoned, or punished abroad, or, in the latter case, has not served the sentence. If the sentence has only been partially served, it shall be taken into account proportionally reducing the corresponding sentence.
• The jurisdiction to prosecute crimes committed abroad by any person of any nationality:
1. against Spanish interests and Constitutional order:
1. treason and crimes against the peace or independence of the state;
2. against the holder of the Crown, their Consort, their Successor, or the Regent;
3. rebellion and sedition;
4. forgery of the royal signature or seal, the sate seal, the signatures of Ministers, and public or official seals;
5. counterfeiting of Spanish currency and its issuance;
6. assaults against Spanish authorities or public officials;
7. those committed in the exercise of their functions by Spanish public officials residing abroad and crimes against the Spanish Public Administration; and
8. those related to foreign exchange control;
2. against international order (some conditioned):
1. genocide, crimes against humanity, or against persons and property protected in cases of armed conflict;
2. crimes of torture and against moral integrity;
3. crimes of enforced disappearance included in the International Convention for the Protection of All Persons from Enforced Disappearance, made in New York on 20 December 2006;
4. crimes of piracy, terrorism, illegal trafficking of toxic drugs, narcotics, or psychotropic substances, human trafficking, crimes against the rights of foreign citizens, and crimes against maritime navigation safety committed in marine areas, in the cases provided for in treaties ratified by Spain or in regulatory acts of an international organisation of which Spain is a member;
5. terrorism;
6. crimes contained in the Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970;
7. crimes contained in the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done in Montreal on 23 September 1971, and in its Additional Protocol done in Montreal on 24 February 1988;
8. crimes contained in the Convention on the Physical Protection of Nuclear Material done in Vienna and New York on 3 March 1980;
9. illegal trafficking of toxic drugs, narcotics, or psychotropic substances;
10. crimes of constituting, financing, or integrating into a criminal group or organisation, or crimes committed within them, provided that they involve groups or organisations acting with a view to committing a crime in Spain that is punishable by a maximum penalty of three years in prison or more;
11. crimes against sexual freedom and indemnity committed against underage victims;
12. crimes regulated in the Council of Europe Convention of 11 May 2011, on Preventing and Combating Violence against Women and Domestic Violence;
13. human trafficking;
14. crimes of corruption among private individuals or in international economic transactions;
15. crimes regulated in the Council of Europe Convention of 28 October 2011, on the Counterfeiting of Medical Products and Crimes that Pose a Threat to Public Health; and
16. any other crime whose prosecution is mandatory according to a valid treaty for Spain or by other regulatory acts of an international Organisation of which Spain is a member, in the cases and conditions determined therein.

The Spanish criminal system introduced in 2010 the criminal liability of legal entities, settled by criminal courts when:

• a crime is committed by a natural person – either legal representatives or employees – on behalf of a legal entity or for its benefit;
• the crime is on the catalogue of those that generates criminal responsibilities for legal entities (not all the crimes of natural persons can generate criminal responsibility for legal persons). Considering bribery and corruption, the Criminal Code establishes criminal responsibility of legal entities for:
1. bribery of public officials and authorities (Article 427 bis CC);
2. improper influence over public officials and authorities (Article 430 CC);
3. misappropriation of public funds (Article 435.5 CC);
4. bribery of foreign officials and authorities in economic operations with disruption of competition (Article 288.2 CC);
5. bribery of administrators, executives, and employees of companies (Article 288.2 CC);
6. bribery of sports entities, athletes, and referees to manipulate the outcome of highly significant sports competitions (Article 288.2 CC);
7. falsifying the economic-financial information contained in the prospectuses for any financial instruments (Article 288 CC); and
8. money laundering (Articles 302.2 CC);
• the legal entity has not taken the necessary organisational and management measures to neutralise that possibility and the Criminal Code. These measures must include, at least (Article 31 bis CC):
1. the identification of the activities within which crimes that must be prevented can be committed;
2. protocols or procedures that specify the process of forming the will of the legal entity, making decisions, and executing them;
3. financial management models that are appropriate for preventing the commission of the crimes that must be prevented;
4. the obligation to report possible risks and non-compliance to the body responsible for monitoring the prevention model;
5. a disciplinary system that appropriately sanctions the non-compliance with the measures established by the model;
6. periodic verification of the model and its potential modification when significant violations of its provisions become evident or when changes in the organisation, control structure, or activities carried out make them necessary; and
7. assigning the supervision of the model to a specific body within the legal entity with autonomous powers of initiative and control.

Both natural persons and companies can be held liable for the same offence but:

• when as a consequence of the same facts, a fine is imposed on both parties, courts shall adjust the respective amounts so that the resulting sum is not disproportionate in relation to the severity of those facts (Article 31 ter 1 CC); and
• if the company has no material identity different from the owner who is considered liable, there will be no penalty for the company (non bis in idem).

The transformation, merger, absorption, or division of a legal entity does not extinguish its criminal liability, which will be transferred to the entity or entities into which it transforms, merges, or is absorbed and will extend to the entity or entities resulting from the division (Article 130.2 CC).

Defence of natural persons normally includes:

• the non-existence of the facts or participation in the facts as considered by accusations (presumption of innocence);
• the irrelevance of the facts for the criminal law (legality principle); 
• mitigating circumstances, such as:
1. confession to the authorities of the offence before knowing that judicial proceedings were directed against them;
2. reparation of the harm caused to the victim or to lessen its effects at any point during the proceedings and prior to the trial;
3. extraordinary and undue delay in the proceeding (not attributable to the accused); and
4. any other circumstance with similar significance;
• exempting circumstances (rare in respect of these offences):
1. commit the criminal offence due to:
1. any mental anomaly or alteration; or
2. in a state of full intoxication due to the consumption of alcoholic beverages, toxic drugs, narcotics, psychotropic substances, or others that produce similar effects;
2. act driven by insurmountable fear;
3. act fulfilling a duty or in the legitimate exercise of a right, profession, or position; and
4. state of necessity; and
• limitation periods.

The defence of legal entities against potential criminal liability (in addition to the defence of natural persons) usually focuses on the existence and reliability of their internal control systems for compliance risks, particularly criminal.

Due to the relative youth of this institution and the gradual assimilation of its content by the courts, it is often very useful to introduce an expert as a means of evidence. This expert can explain to the judicial body the reality of the company and its management of criminal risks.

From a procedural perspective, defences usually include:

• time limits for the investigation periods;
• validity of evidence; and
• fundamental rights considerations (defence, fairness of the trial) and consequences.

There are no exceptions to these defences.

There are no de minimis exceptions for the above offences, but some of them require the identification of concrete and valuable damages to be punishable.

There is no sector or industry exempt from the above offences.

There are incentives for those who, having participated in the criminal conduct:

• do not complete the execution and prevent or try to prevent seriously, firmly, and decisively, its consummation, which eliminates responsibility (Article 16.3 CC);
• communicate to public authorities about the crime, collaborating with the investigation:
1. before any judicial process or administrative investigation is activated:
1. general provision to reduce the responsibility (Article 21.4 CC);
2. total elimination of responsibility in:
• anti-competition conduct in public tenders and auctions (Article 262 CC) and affecting markets (Article 288 bis CC); and
• a private individual who accepted the bribery proposal (Article 426 CC).
2. after the activation:
1. general provision to potentially reduce the responsibility (Article 21.7 CC); and
2. reduction of responsibility:
• misappropriation of public funds (Article 434 CC); and
• public health.
• repair damages:
1. before any judicial process or administrative investigation is activated:
1. general provision to reduce the responsibility (Article 21.5 CC);
2. total elimination of responsibility in:
• tax fraud (Article 305.4 CC);
• social security payments fraud (Article 307.3 CC);
• social security benefits fraud (Article 307 ter.3 CC); and
• grant fraud (Article 308.6 CC).
2. after the activation:
1. total elimination of responsibility if it is returned, during the first ten days of the process, the public asset designated to private purposes (Article 432 bis p.2 CC);
2. general provision to reduce the responsibility (Article 21.5 CC); and
3. reduction of responsibility:
• misappropriation of public funds (Article 434 CC);
• tax fraud (Article 305.6 CC);
• social security payments fraud (Article 307.5 CC);
• social security benefits fraud (Article 307 ter.6 CC);
• grant fraud (Article 308.8 CC); and
• crimes related to urban development, against cultural heritage and natural resources (Article 340 CC).

Incentives are also designed for corporations which (Article 31 quarter CC):

• proceeded, before knowing that the legal proceedings are directed against them, to confess to authorities;
• collaborate with the investigation by providing evidence, at any time during the process, that was new and decisive to clarify criminal responsibilities;
• proceeded at any time during the procedure and prior to trial, to repair or diminish the damage caused by the crime; and
• establish, before the trial, effective measures to prevent and uncover crimes that could be committed in the future under the cover of the legal entity.

See 3.1 Limitation Period for natural persons.

Penalties for legal persons can be:

• in the form of a fine – timely defined or proportional to the benefit obtained;
• dissolution of the legal entity. The dissolution will result in the definitive loss of its legal personality, as well as its capacity to act in any way in legal transactions or to carry out any kind of activity, even if lawful;
• suspension of its activities for a period not exceeding five years;
• closure of its premises and establishments for a period not exceeding five years.;
• prohibition from carrying out in the future the activities in which the crime was committed, favoured, or concealed. This prohibition may be temporary or permanent. If it is temporary, the period shall not exceed 15 years;
• disqualification from obtaining subsidies and public aid, from contracting with the public sector, and from enjoying tax benefits and incentives from Social Security, for a period not exceeding 15 years; and
• judicial intervention to safeguard the rights of workers or creditors for as long as deemed necessary, which shall not exceed five years.

Penalties for the above offences are as follows.

• Bribery of public officials and authorities (Article 427 bis CC):
1. fine – up to five years or five times the benefit obtained; or
2. dissolution, suspension, closure of premises, prohibition of activities, disqualification to obtain subsidies, judicial intervention.
• Improper influence over public officials and authorities (Article 430 CC):
1. fine – up to two years; or
2. dissolution, suspension, closure of premises, prohibition of activities, disqualification to obtain subsidies, judicial intervention.
• Misappropriation of public funds (Article 435.5 CC):
1. fine – up to five years or five times the benefit obtained; or
2. dissolution, suspension, closure of premises, prohibition of activities, disqualification to obtain subsidies, judicial intervention.
• Bribery of foreign officials and authorities in economic operations with disruption of competition (Article 288.2 CC):
1. fine: up to five years or five times the benefit obtained; or
2. dissolution, suspension, closure of premises, prohibition of activities, disqualification to obtain subsidies, judicial intervention.
• Bribery of administrators, executives, and employees of companies (Article 288.2 CC):
1. fine – up to five years or five times the benefit obtained; or
2. dissolution, suspension, closure of premises, prohibition of activities, disqualification to obtain subsidies, judicial intervention.
• Bribery of sports entities, athletes, and referees to manipulate the outcome of highly significant sports competitions (Article 288.2 CC):
1. fine – up to five years or five times the benefit obtained; or
2. dissolution, suspension, closure of premises, prohibition of activities, disqualification to obtain subsidies, judicial intervention.
• Falsify the economic-financial information contained in the prospectuses for any financial instruments (Article 288.2 CC):
1. fine – up to five years or five times the benefit obtained; or
2. dissolution, suspension, closure of premises, prohibition of activities, disqualification to obtain subsidies, judicial intervention.
• Money laundering (Articles 302.2 CC):
1. fine – up to five years; or
2. dissolution, suspension, closure of premises, prohibition of activities, disqualification to obtain subsidies, judicial intervention.

There are no guidelines applicable to the assessment of appropriate penalties, but the Spanish Criminal Code includes rules for the application of the penalties (included in the legality principle).

These rules:

• define (content) the penalties (Articles 32 to 60 CC);
• cement the rules for the imposition of the penalties:
1. general rules (Articles 61 to 72 CC); and
2. when considering various crimes (Articles 73 to 79 CC); and
• cement the rules for the execution of the penalties:
1. suspension (Articles 80 to 87 CC);
2. substitution (Article 89 CC); and
3. conditional release (Articles 90 to 92 CC).

Anyone who witnesses the commission of any public crime is obligated to immediately inform the nearest investigating judge, prosecutor or police officer (Article 259 of the Spanish Criminal Procedural Law).

When the natural or legal person can be considered liable for the offence, the privilege against self-incrimination (Article 6.1 ECHR) prevails, and there is no obligation to inform to authorities.

Self-incrimination and collaboration with authorities can have the benefits expressed in 4.5 Safe Harbour or Amnesty Programme.

There is no concrete process for self-disclosure information or documentation.

Normally, it is a procedure led by the attorney of the self-incriminated, who co-ordinates the collaboration and negotiates the incentives with the prosecutor. Once the judicial process begins, it is also possible to achieve termination through an agreement with the prosecutor’s office. 

Apart from the requirements of a privileged regime to reduce penalties when considering crimes with a maximum penalty of less than three years of imprisonment, plea agreement terms are flexible and widely used as a legal instrument. 

Over the last year, approximately 75% of cases related to crimes with penalties of less than three years’ imprisonment have been concluded with plea agreements. This figure drops to 65.4% for crimes carrying penalties ranging from three to five years of imprisonment, and to 58.8% for crimes with penalties exceeding five years of imprisonment.

In March 2023, a new law regulating the protection of individuals reporting regulatory violations and combating corruption (Law 2/2023, published on 21 February 2023, and entered into force on 13 March 2023) came into effect, transposing Directive 2019/1937. 

The law introduced the obligation, for both private and public entities, to implement systems to receive information and investigate regulatory violations constituting crimes or serious administrative offences (Article 2.1.b Law 2/2023) with certain requirements and guarantees. Private and public entities must guarantee from now on protective measures for the whistle-blower.

• Prohibition of retaliation (Article 36 Law 2/2023), including:
1. suspension, dismissal, or termination of the employment contract;
2. damages, including reputational damages, or economic losses, coercion, intimidation, harassment, or ostracism;
3. negative evaluations or references regarding work or professional performance;
4. inclusion on blacklists or dissemination of information in a specific sector that can affect the access to employment or the contracting of works or services;
5. denial or cancellation of a licence or permit;
6. denial of training; and
7. discrimination or unjust treatment.
• Supportive measures (Article 37 Law 2/2023), including: 
1. comprehensive and independent information and advice, easily accessible to the public and free of charge, regarding the procedures and resources available, protection against retaliation, and the rights of the affected person;
2. effective assistance from competent authorities before any relevant authority involved in their protection against retaliation;
3. legal assistance in criminal proceedings and in cross-border civil proceedings in accordance with community regulations; and
4. financial and psychological support, exceptionally, if so decided by the Independent Whistle-Blower Protection Authority (AAI) after assessing the circumstances arising from the submission of the communication.

Entities face fines (ranging from EUR100,000 to EUR1 million – Article 65.1 Law 2/2023) in case the internal systems are not implemented in the prescribed manner.

No rewards or incentives are offered to whistle-blowers different from the protection measures expressed against retaliation and supportive measures.

There is no civil enforcement of anti-bribery and anti-corruption laws complementary to the civil consequences of the criminal offences detailed previously, that are discussed in respect of the criminal process.

In general terms, the civil consequences could be indemnity (if there are damages derived from the criminal action to be compensated), reparation (if physical situations can be restored/repaired to their original condition), restitution (if there are things to be returned) and nullity (of public resolutions).

There are some administrative specific enforcements that can affect the anti-bribery and anti-corruption policies, as follows.

• Associated to the NextGenerationEU (NGEU) European funds (to be applied in public procurement or financial aids awarded by national administrative authorities), the administrative bodies with authority to decide the final application and destination of the funds, must have implemented an anti-fraud plan evaluating and adopting controls and due diligence procedures against the risks:
1. linked to applicant selection:       
1. conflicts of interest within the evaluation board;
2. false declarations by applicants; and
3. double funding;
2. linked to implementation and verification:       
1. undisclosed conflict of interests or bribes and kickbacks;
2. avoidance of required competitive procedure;
3. manipulation of the competitive procedure process;
4. collusive bidding;
5. defective pricing;
6. manipulation of cost claims;
7. non-delivery or substitution of products;
8. amendment of existing contract;
9. overstatement of quality or activities of personnel;
10. false labour costs; and
11. labour costs apportioned incorrectly to specific projects;
3. linked to certification and payments:
1. incomplete/inadequate management verification process;
2. incomplete/inadequate expenditure certification process;
3. conflicts of interest within the MA; and
4. conflicts of interest within the certifying authority;
4. linked to direct procurement:
1. avoidance of required competitive procedure;
2. manipulation of the competitive procedure process; and
3. undisclosed conflict of interests or bribes and kickbacks;
5. linked to the regulation of the protection of individuals reporting regulatory violations and combating corruption, the Independent Whistle-Blower Protection Authority (AAI) and regional anti-fraud agencies can supervise the implementation systems of both private companies and public institutions to receive information and investigate regulatory violations.

Criminal enforcement is led by the criminal jurisdiction of the Spanish judicial power.

In the case of the European Funds, the enforcement agencies are:

• European Anti-fraud Office (OLAF – Office de Lutte Anti-Fraude) – can investigate the facts and transmit its conclusions to the EPO; and
• European Prosecutor Office (EPO) – can initiate a criminal process due to its own information, the conclusions of the OLAF or the information provided by any citizen, private company or public body.

In the case of the protection of individuals reporting regulatory violations and combating corruption, the enforcement agencies are as follows.

• Depending on the general state administration, the Independent Whistle-Blower Protection Authority (AAI), whose statutes have been recently approved by the Royal Decree 1101/2024, (published on 30 October 2024, and entered into force on 31 October 2024).
• Depending on the autonomous community’s administration:
1. Andalucía – Andalusian Office against Fraud and Corruption;
2. Castilla y León – Independent Authority on Corruption in Castilla y León;
3. Cataluña – Catalonia Anti-Fraud Office;
4. Galicia – Galician Authority for the Protection of Whistle-Blowers;
5. Navarra – Office of Good Practices and Anti-Corruption of the Foral Community of Navarra; and
6. Valencia – Agency for the Prevention and Fight Against Fraud and Corruption of the Valencian Community.

The central authority will be competent when the information affects (Article 24 Law 2/2023, of February 20, regulating the protection of individuals who report regulatory violations and the fight against corruption):

• the General State Administration and entities that conform the national public sector (see also Article 13 Law 2/2023);
• private sector entities when the violation or non-compliance reported affects or produces its effects within the territorial scope of more than one autonomous community;
• and activity of the public or private sector referred to an autonomous community, if the concrete autonomous community declares that intention and signs an agreement with the central Independent Whistle-Blower Protection Authority (AAI).

In respect of criminal judicial activity, the ordinary competent authority to investigate bribery and corruption in Spain is the Investigation Court of the judicial region in which the crime is committed. There are 431 judicial regions with very different characteristics. Some of them have more than one investigation court (ie, there are 54 investigation courts in Madrid, and 33 in Barcelona). In those cases, the competent court results from the application of the previously fixed organic assignment rules of cases.

The central investigation courts, as part of the National High Court (Audiencia Nacional), are the competent authorities to investigate cases affecting to various judicial regions (national relevance/extension). There are six central investigation courts, and all six have the same competencies. The one ultimately in charge of a case is determined by aleatory assignment rules to ensure independence.

The Prosecutor Office is the constitutionally designed institution in change of the defence of legality. In respect of criminal investigation and prosecution, the Prosecutor Office has competence to:

• develop preliminary investigations (not involving measures affecting fundamental rights);
• initiate judicial investigations and concrete investigation measures, both to be decided by the investigation courts; and
• formulate an accusation, if trial phase is reached.

The Prosecutor Office is organised both based on territorial and specialisation criteria, and for the purposes of this chapter, the Anti-corruption Prosecutor Office has relevance.

Since 2021, the European Prosecutor Office (EPO) has Spanish European Delegated Prosecutors (seven), responsible for investigating, prosecuting and bringing to judgment criminal offences affecting the financial interests of the Union (Directive (EU) 2017/1371 and Article 4 Regulation (EU) 2017/1939).

The conclusions of the OLAF considering fraud are sent to the EPO, which decides the procedural consequences.

If the EPO decides to initiate a criminal process (due to its own information, the conclusions of the OLAF or the information provided by any citizen, private company or public body), all its decisions with their legal consequences must have effective judicial legal protection (as covered by Union law, Article 19.2 TEU), that in Spain, during the investigation period of the process, is assured by revision of the Guaranties Judge (Article 8 Organic Law 9/2021, of July 1, on the application of Council Regulation (EU) 2017/1939, of 12 October 2017, establishing enhanced co-operation for the creation of the European Public Prosecutor’s Office).

The decisions of the Independent Whistle-Blower Protection Authority (AAI) or the offices of the autonomous community’s administration can be appealed through the administrative jurisdiction.

The decisions of the criminal courts have a complete appeal system, to comply and fulfil the fundamental rights of the process (especially the right to appeal in criminal matters, Article 2 Protocol 7 to the ECHR).

There is no discretion for mitigation and aggravation in enforcing the law different to the benefits expressed in 4.5 Safe Harbour or Amnesty Programme.

On the administrative side, there has been still no sanction of the Independent Whistle-Blower Protection Authority (AAI) as the legal framework of the central authority has just been approved (Royal Decree 1101/2024, published 30 October 2024, entered into force on 31 October 2024) and the authority is not yet a material reality.

The prosecutor and judicial enforcement activity related to both public and private bribery and corruption conduct carried out by natural and/or legal persons during the last year has extended to:

• 94 prosecutor investigations, 56 judicial investigations, 53 decisions to judge and 25 trials related to facts linked to misappropriation of public funds, including the misappropriation of public assets (Article 423 CC), their use for private purposes (Article 424 CC), or for a purpose different from the one intended (Article 433 CC);
• 19 prosecutor investigations, three judicial investigations, two decisions to judge and no trials related to facts linked to improper influence over public officials and authorities (by other public officials or authorities (Article 428 CC) or by a non-public person (Article 429 CC));
• 15 prosecutor investigations, four judicial investigations, two decisions to judge and a trial related to facts linked to fraud in public procurement (Article 436 CC);
• 27 prosecutor investigations, 26 judicial investigations, 16 decisions to judge and ten trials related to facts linked to bribery of public officials and authorities to engage in improper conduct (both the public official who promotes or receives it (Article 419 CC) and the private individual who promotes or pays it (Article 424 CC));
• there has been no new prosecutor or judicial investigation and neither decision to judge nor trials linked to the crime of bribery of foreign officials and authorities in economic operations with disruption of competition (Article 286 ter CC), and there has only been one trial;
• eight prosecutor investigations, no judicial investigations, no decision to judge and one trial related to facts linked to the crime of bribery of administrators, executives, and employees of companies (Article 286 bis CC);
• there has been no new prosecutor or judicial investigations and neither decision to judge nor trials linked to the crime of bribery of sports entities, athletes, and referees to manipulate the outcome of highly significant sports competitions (Article 286 bis CC); and
• 25 prosecutor investigations, 287 judicial investigations, 567 decisions to judge and 211 trials related to facts linked to the crime of money laundering (Articles 301–304).

As a result of criminal judicial activity, severe imprisonment penalties are imposed frequently on natural persons linked to the crimes expressed above. Often, this includes a a consideration of various crimes, increasing the final terms of imprisonment (Articles 73 to 79 CC).

With reference to legal persons, almost all the penalties imposed linked to their criminal responsibility are fines and a result of agreements with the Prosecutor Office.

There is no legal obligation to implement compliance programmes.

The implementation of compliance programmes fulfilling the requirements of Article 31 bis CC (detailed in 3.3 Corporate Liability) should generate the non-existence of criminal responsibility of the company in the case a crime is committed by a natural person – either legal representatives or employees – on behalf of a legal entity or for its benefit.

Enforcement bodies have not provided guidelines regarding expectations and/or best practices for compliance programmes.

The closest thing to those guidelines is the guide published by the National Anti-Fraud Co-ordination Service in 2022 to implement anti-fraud measures when public administrations or public companies lead public procurement processes using those European funds, including risk assessment (fraud, corruption, conflicts of interests or double funding), preventive measures (anti-fraud policy, code of ethics, internal control systems, anti-fraud unit, training and awareness), detection measures (red flags, data controls, whistle-blower channel) and correction measures.

There are two methodologies that are being largely used by companies in Spain to comply with the criminal corporate compliance requirements: ISO 37.301 (Compliance Management Systems. Requirements with Guidance for Use) and ISO-UNE 19.601 (Criminal Compliance Management Systems. Requirements with Guidance for Use).

Enforcement bodies do not have the option of seeking a compliance monitor as part of corporate resolutions.

The Group of States Against Corruption (GRECO – Groupe d’Etats contre la corruption) of the Council of Europe, adopted its last published report referred to Spain (addendum to the second compliance report) at its 92nd Plenary Meeting on 2 December 2022 (the last report – Second Compliance Report – adopted at the 95nd Plenary meeting on 27 November to 1 December 2023 is confidential) covering corruption prevention in respect of members of parliament, judges and prosecutors. The recommendations referred to:

• corruption prevention in respect of members of parliament, includes the introduction of rules on how members of parliament engage with lobbyists and other third parties who seek to influence the legislative process;
• corruption prevention in respect of judges, includes:
1. carrying out an evaluation of the legislative framework governing the General Council of the Judiciary (CGPJ) and of its effects on the real and perceived independence of this body from any undue influence;
2. objective criteria and evaluation requirements be laid down in law for the appointment of the higher ranks of the judiciary – ie, Presidents of Provincial Courts, High Courts of Justice, the National Court and Supreme Court judges, in order to ensure that these appointments do not cast any doubt on the independence, impartiality and transparency of this process;
• corruption prevention in respect of prosecutors, includes:
1. reconsidering the method of selection and the term of tenure of the Prosecutor General;
2. establishing clear requirements and procedures in law to increase transparency of communication between the Prosecutor General and the government; and
3. exploring further ways to provide for greater autonomy in the management of the means of the prosecution services.

The current Prosecutor General is being investigated by the Supreme Court for leaking confidential information and data (ie, confidential communications between lawyers and prosecutors) to the media and to the public, concerning pre-trial investigations involving the sentimental partner of a key leader of the opposition party. The Supreme Court has ordered an entry and search of the Prosecutor General’s office, seizing all his digital devices to investigate the offence.

The 2024 EU rule of law report in the European Union with reference to Spain (24 July 2024) recommends the following.

• Continue to strengthen the statute of the Prosecutor General, in particular regarding the separation of the terms of office of the Prosecutor General from that of the government, taking into account European standards on independence and autonomy of the prosecution.
• Proceed to adopt legislation on lobbying, including the establishment of a mandatory public register of lobbyists.
• Strengthen the rules on conflicts of interest and asset declarations of persons with top executive functions, including by reinforcing the independence and sanctioning power of the Office for Conflicts of Interest.
• Step up efforts to address the challenges related to the length of investigations and prosecutions to increase the efficiency in handling high-level corruption cases, including by finalising the reform of the Code of Criminal Procedure.

The last OECD report (phase 4 – particular challenges and positive achievements) linked to the Anti-bribery Convention published on 8 December 2022, criticises the fact that to that date, not one company has been sanctioned for foreign bribery and recommends:

• take necessary steps to more proactively detect and enforce anti-bribery legislation;
• with due respect to judicial independence, ensure that application of foreign bribery laws is not in practice subject to a restrictive interpretation by law enforcement and judiciary;
• provide training to tax officials on the detection of foreign bribery and on the applicable requirement for reporting suspected offences to law enforcement officials; and
• establish a national database for all ongoing cases with a view to ensuring co-ordination of foreign bribery investigations nationally and maintain statistical data on cases involving foreign bribery.

There have been the recent legislative modifications, as discussed previously, affecting both the definition of the offences and the enforcement bodies. There are no other foreseeable legislative modifications in the short and middle term. In the long term, the following is foreseen.

• European legislation:
1. implementation of the Regulation (EU) 2023/1543 of the European Parliament and of the Council of 12 July 2023 on European Production Orders and European Preservation Orders for electronic evidence in criminal proceedings and for the execution of custodial sentences following criminal proceedings (will enter into force on 18 August 2026);
2. transposition of the Directive (EU) 2023/1544 of the European Parliament and of the Council of 12 July 2023 laying down harmonised rules on the designation of designated establishments and the appointment of legal representatives for the purpose of gathering electronic evidence in criminal proceedings (to be transposed before 1 February 2026);
3. Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024 on the protection of the environment through criminal law and replacing Directives 2008/99/EC and 2009/123/EC (to be transposed before 21 May 2026); and
4. Directive (EU) 2024/1226 of the European Parliament and of the Council of 24 April 2024 on the definition of criminal offences and penalties for the violation of Union restrictive measures and amending Directive (EU) 2018/1673 (to be transposed before 20 May 2026).
• On 12 May 2022, Spain signed the Second Additional Protocol to the Convention on Cybercrime on enhanced co-operation and disclosure of electronic evidence (CETS No 224) of the Council of Europe, which is pending the approval of the United Nations Cybercrime Convention, and the EU-US e-evidence agreement to facilitate access to electronic evidence in criminal investigations, which is being negotiated between the US Department of Justice and the European Commission.

Regarding the judiciary, the Supreme Court has important pending judgments that could be solved during the next year affecting, at least:

• the interpretation of the different figures of the misappropriation after the modification of their definition in 2023.
• the extent of the permitted facilitation and commercial payments involving foreign officials in economic transactions (Articles 445 CC – 286 ter CC); and
• the corporate criminal liability of companies. The Supreme Court has progressively provided greater detail on the elements of criminal liability of legal entities (last example Sentence 298/2024, 8 April 2024 articulates significant considerations regarding the burden of proof of the existence and content of internal control components) and will continue shaping them. 

Regarding the administrative authorities, the Independent Whistle-Blower Protection Authority (AAI) must begin with its operations during the next year, and provide new references and frameworks for the protection of whistle-blowers and the execution of internal investigations.