White-Collar Crime 2024 Comparisons

Substantive criminal law is that part of the criminal law concerned with the regulation of crimes and punishments, dangerous situations and measures of security, which means, on the one hand, dealing with the general principles of crime and punishment, dangerous situations and measures of security (ie, conditions under which and act or an omission should be considered a criminal offence, or a situation as dangerous; conditions under which a person should be considered a perpetrator or an accomplice; conditions under which an offence should be considered completed or attempted; different kinds of penalties or measures of security which could be imposed and ways they should be implemented) and, on the other, dealing with the definition of the various criminal offences. In relation to crimes and punishments, dangerous situations and measures of security, the regulation of those principles and offences is mainly contained in the Spanish Penal Code 1995 (SPC). The SPC establishes the conditions and regulation of criminal responsibility for adult offenders, which means those being 18 years of age or over. For juvenile or young offenders, all of those who are between 14 and 18 years of age who have committed an action or an omission considered a crime under the SPC provisions, the conditions and regulation of their responsibility is established in the Criminal Responsibility of Juveniles Law of 2000, also amended several times since then.

In a broad sense, crimes, under the Spanish law, are illegal acts or omissions, defined by the law, punishable by the state’s criminal jurisdiction. But in a strict sense, the SPC differentiates between serious felonies, less serious felonies and minor felonies.

Serious felonies are regulated in Book II of the Penal Code and punishable with so-called severe penalties (Article 33[2]). Less serious felonies are also regulated in Book II of the Penal Code and punishable with so-called less serious penalties (Article 33[3]). Minor felonies are regulated and punished in Book II of the SPC with so-called minor penalties (Article 33[4]).

Primary offenders may have the execution of their prison sentenced suspended for a period between two and five years, whenever the sentence imposed, or the sum of those imposed, does not exceed a two-year term, and if they pay the full amount of compensation to the victim ordered by the sentencing court. Should the offender commit a new crime during the suspension period, then the offender will have to serve the new sentence for the new crime and the sentence originally imposed.

Every offence consists of an objective (actus reus) and a subjective (mens rea) element; the former refers to the act or omission that comprises the physical elements of a crime as required by the law and, in certain cases, an event causally linked to the act or omission, the later refers to criminal intent and identifies the state of mind statutorily required in order to convict a defendant (Articles 10 and 11). Punishments for acting negligently or unintentionally or with fault are possible only if statutorily envisaged (Article 12).

In the case of wilful offences, Article 16 establishes that an attempted criminal offence takes place when a person begins to perpetrate a criminal offence by direct action, perpetrating all or part of the acts that objectively should produce the intended result, and notwithstanding this, such is not attained due to causes beyond the control of the offender. Whoever voluntarily avoids the criminal offence being consummated, either by going no further with its commission when already commenced, or by preventing the result from taking place, shall be exempt from criminal liability, without prejudice to the liability which they may have incurred for the acts perpetrated, should these already have constituted another criminal offence. When various persons intervene in an act, the one or those who desist from execution thereof once already commenced, and who prevent or attempt to prevent consummation, in a serious, firm and determined manner, shall be exempt from criminal accountability, without prejudice to the accountability they may have incurred for the deeds perpetrated, should these already have constituted another criminal offence.

The SPC also punishes some specific acts in which the crimes have not yet been perpetrated (Articles 17 and 18), defined as conspiracy (when one or more persons collude to commit a criminal offence and decide to carry it out), proposition (when the person who has resolved to commit a criminal offence invites another or other persons to commit it), and provocation (when a direct incitation is present by means of the printing press, radio broadcasting or any other means with a similar effectiveness, affording publicity, or when persons have gathered, inciting the perpetration of a criminal offence).

In the criminal procedure, the burden of proof rests on either or both the public prosecutor and the private prosecutor by establishing the facts of the case. Unlike common law countries, civil law countries like Spain have codes setting out some basic rules about evidence and proof. Most of the time, these rules set evidence assessment criteria instead of standards of proof. Nowadays, these criteria are rather relaxed, leaving room for judicial discretion. According to the Spanish Criminal Procedure Law (SCPL) judges assess the evidence with their “conscience”(Article 741.1). The appraisal of evidence in “good conscience” seems to be in line with the French concept of intime conviction.

At the same time, in light of all the fundamental rights enshrined in the Spanish Constitution, the right to the presumption of innocence (Article 24) has been repeatedly found, by both the Supreme Court and the Constitutional Court, to require a criminal court, when imposing guilty sentences after an criminal trial, to provide sufficient evidence to prove the existence of the infringement.

According to Article 132 of the SPC, statutes of limitations are calculated from the day on which the punishable criminal offence was committed. In cases of the so-called continued criminal offence, permanent criminal offence, as well as criminal offences requiring assiduity, those terms shall be calculated, respectively, from the day on which the last infraction took place, from when the unlawful situation or the conduct ceased.

According to Article 131, criminal offences prescribe as follows:

• after 20 years, the maximum punishment set for the criminal offence is a prison sentence of 15 or more years;
• after 15 years, the maximum punishment set by law is disqualification for more than ten years, or a prison sentence of more than ten and less than 15 years;
• after ten years, the maximum punishment set by law is a prison sentence or disqualification for more than five years and not exceeding ten years; and
• after five years, all other criminal offences, except minor criminal offences and those of slander and defamation, shall prescribe within one year.

As a general rule, Spanish Courts have jurisdiction to hear and rule on proceedings relating to offences perpetrated within the Spanish territory, notwithstanding the stipulations of international treaties to which Spain is a signatory (Article 23.1 of the Organic Act 6/1985, of 1 July, on the Judiciary).

However, crimes committed outside Spanish territory also fall under Spanish jurisdiction when those held criminally responsible are Spanish or are foreigners who have acquired Spanish nationality subsequent to the perpetration of the act and where the following requisites are met.

• The act must be punishable in the place where it was perpetrated, save where, by virtue of an international Treaty or the legislative act of an international organisation of which Spain is a member, this requisite does not prove necessary.
• The affected party or the State Prosecutor must file a lawsuit before the Spanish courts.
• The offender must not have been acquitted, pardoned or convicted abroad or, in the latter case, must not have served the sentence. If only part of the sentence has been served, this shall be borne in mind in order to decrease the corresponding sentence by the appropriate amount.

Secondly, there are some crimes that, if committed by Spanish citizens or foreign nationals outside national territory shall fall under Spanish jurisdiction. The crimes that are relevant here are:

• any forgery that directly occasions detriment to the credit or interests of the State, along with the introduction or issuance of the forgeries;
• those perpetrated by Spanish public servants residing abroad while exercising their duties, and crimes against the Spanish Public Administration; and
• those relating to foreign exchange control.

Another group of crimes also fall under Spanish jurisdiction (i) when they are perpetrated by Spanish citizens or foreigners outside Spanish territory, and (ii) when special circumstances are met. The relevant crimes are crimes of corruption between individuals or within international economic transactions, and crimes regulated in the Council of Europe Convention of 28 October 2011 on the counterfeiting of medical products and similar crimes involving threats to public health.

Criminal liability of legal persons or legal entities was, for the first time, introduced in the Spanish criminal legal system by Organic Act 5/2010 of 22 June (amended by Organic Act 1/2015 of 30 March). Since it came into force, the SPC provides for an express regulation of the criminal liability of legal entities for crimes committed, on their behalf a benefit, by their representatives, administrators, directives, employees and/or contracted workers.

Specifically, to produce the criminal liability of a legal entity it is necessary (Article 31 bis) that some of the individuals who belong to or work for the company commit one of the offences for which the criminal liability of the company is established.

SPC does not establish any consequences for managers, officers or directors of a legal entity which has been found guilty in a criminal case. Nevertheless, in some cases, such managers, officers or directors might be found guilty of the same offences committed by the company, if the relevant court considers that they were aware of the criminal conduct and they did nothing to prevent it although they were in a position to do so.

Most crimes can only be committed with consent or wilful misconduct. However, for some offences, such as money laundering, negligence is enough.

When a defendant is deemed guilty of a white-collar offence (or of any offence), the SPC does not provide for a maximum penalty, as other legal systems do, but establishes a general penalty frame for each offence (the abstract penalty), which is defined in Article 61 as the penalty to be imposed on the perpetrator of the completed offence. It comprises a maximum and a minimum penalty, and, in the general part of the SPC, certain rules are established for judges and courts for the application of the penalty which reduces the range of the frame, giving what is known as the concrete penalty frame. Within this frame, the judge or court must choose a fixed duration of the penalty, because no indeterminate sentences are not permitted. These rules take into account the degree of execution of the offence, forms of participation, whether there was one single offence or more, and the presence of certain circumstances increasing or decreasing the gravity or culpability.

Thus, Articles 21-23 of the SPC regulates a number of general circumstances that may mitigate or aggravate criminal responsibility. They take effect at the moment of sentencing or individualisation of the penalty. The number, class and characteristics of the mitigating or aggravating circumstances available limit the scope of discretion of the judge when choosing a specific duration for the penalty. They must be distinguished from the aggravated or attenuated forms of each offence as often described in the specific part of the SPC.

On the one hand, Article 100 of the SCPL provides that all offences and misdemeanours, besides the criminal punishment of the guilty party, may give rise to civil action for the return of things, repair of damages, and compensation of material and moral damages caused by the punishable act.

On the other, Article 116 of the SPC establishes that all persons held criminally liable for a criminal offence shall also be held liable under civil law if the act gives rise to damages or losses. Some parties may be held civilly accountable for damages or losses caused by the principal (for instance, employers, parents, etc), although the liability shall first be enforced against the assets of the offenders and then those of the accomplices. The criminal liability of a legal person shall involve their civil liability pursuant to the provisions contained in Article 110 of the SPC, jointly and severally with the natural persons who are found guilty of the same acts.

As opposed to most other jurisdictions, where public prosecutors conduct criminal investigations, in Spain, the capacity to prosecute offences is limited to the Investigation Courts (Juzgados de Instrucción). Nevertheless, the police (either National Police, Guardia Civil or other regional police corps), the Prosecution Office and individuals and legal persons in general, can report to the Investigation Courts any conduct they may consider to be a crime and act as complainants.

The Investigation Courts operate on a local/regional level: there is at least one in each judicial district (a territorial unit which can include one or more municipalities). However, the National Court (Audiencia Nacional) has its own Investigation Courts: the Central Investigation Courts (Juzgados Centrales de Instrucción), which have jurisdiction throughout the Spanish territory for certain offences.

Regarding the Public Prosecutor՚s Office, which usually conducts the investigation, it is important to mention that although all the public prosecutors of Spain work under the unique authority of the State General Public Prosecutor, the Public Prosecutor՚s Office is organised at a national level with a head office in each of the 50 provinces and another head office in each of the 17 Autonomous Regions, one head office at the Supreme Court and one at the Constitutional Court. There are also two Special Public Prosecutor՚s Offices for some specific crimes, with preferential authority over any of the territorial offices:

• the Special Public Prosecutor՚s Office Against Corruption and Organised Crime (Fiscalía Especial contra la Corrupción y la Criminalidad Organizada); and
• the Special Public Prosecutor՚s Office Against Illegal Drug Trafficking (Fiscalía Especial Antidroga).

There are certain criminal offences, which at a previous stage were what we call administrative violations, not crimes. In these cases, the administrative proceedings (independent and different from the criminal ones) lie with these public agencies which have the capacity to impose sanctions with relevant fines. The most important agencies are:

• the CNMV (Comisión Nacional del Mercado de Valores), the Spanish equivalent to the USA’s SEC;
• the CNMC (Comisión Nacional del Mercado de la Competencia), the national anti-Ttust commission;
• the AEAT (Agencia Estatal de Administración Tibutaria), the Spanish tax authority;
• Banco de España, the Bank of Spain; and
• Inspección de Trabajo, the labour inspectorate.

If these agencies understand that the violation committed exceeds the limits of an administrative violation, turning itself into a crime, they can directly denounce it before the competent Investigation Court and act as a private accusation party, using their own lawyers, either by hiring them from a private law office or using the services of a state lawyer.

Investigations may be initiated by the police, by governmental agencies with capacity to investigate legal violations (for example, those mentioned in 2.1 White-Collar Enforcement Authorities, and, in general terms, all those ministerial departments, either at a national or at a regional level, or even local or municipal authorities), by public prosecutors or even by private parties (internal investigations in the case of legal entities).

In the case of governmental agencies or private parties, at the very moment they become aware that a crime could have been committed, they are obliged to deliver all the information gathered to the police, the Public Prosecutor՚s Office or to the competent Investigation Court. In fact, in the Spanish Criminal System, private investigators cannot investigate crimes.

In the case of the Public Prosecutor՚s Office, it has the power to investigate crimes, but six months after the beginning of the investigation proceedings, the public prosecutor in charge of the investigation should either file the case or deliver the case to the competent Investigation Court.

The police can conduct the essential and immediate criminal investigations (to which Article 282 of the SCPL refers to as the “preventive measures”, that is measures addressed to ascertain the crimes and discover who the offenders are, and collect, for all purposes, instruments or evidence of the crime which may be in danger of disappearing), even arresting the individuals who appear to be responsible, but once these investigations have been carried out, the case will be delivered to the competent Investigation Court and, from then on, it will work under the instructions and orders of the Investigation Judge (Article 286 of the SCPL).   

The Investigation Judge sitting at the Investigation Court is the party responsible for conducting the necessary investigation procedures, either by its own initiative or by the promotion of the accusation or defence parties who can propose any kind of investigation procedures to the court. These investigation procedures are aimed at producing evidence that proves or refutes the facts and events reported in the criminal claim. The most relevant investigation procedures to gather information (regardless the nature of the crime) are:

• the interrogation of the defendants;
• the interrogation of witnesses; and
• the production of documents and search warrants, including raids.

Article 118.4 of the SCPL provides that all communications between the party under investigation or the accused and their lawyer will be confidential in nature. If these conversations or communications have been recorded or intercepted during the execution of any investigation procedure, the judge will order the recording to be deleted, or the correspondence intercepted to be handed over to the recipient and will leave a record of these circumstances of the proceedings. These provisions will not be applicable where there is objective evidence indicating that the lawyer took part in the criminal act under investigation or evidence of their involvement with the party under investigation or the accused in committing another criminal offence.

On the other hand, the special privilege of corporate communications with in-house attorneys or any documents from them raises some questions. In principle, the special privilege of secrecy also governs the relationship between in-house attorneys and the company. However, the European Court of Justice ruled that the attorney-client privilege requires two cumulative conditions: (i) that the communications between the attorney and the client are connected to client’s rights of defence, and (ii) that the communications are emanated from independent attorneys. That is said, an in-house attorney, who is bound to the client by an employment relationship, cannot be considered an independent attorney.

However, Spanish case law sets out that the communications between an in-house attorney at a company and the documents they prepare are protected by the attorney-client privilege if those communications and documents were made within their defence, advice or judicial counselling functions (the inherent functions of an attorney).

Law 2/2023 on the protection of persons who report regulatory breaches and anti-corruption measures transposes the EU Whistleblowing Directive 2019/1937 into law. The Law aims to protect whistleblowers and sets out the obligation to establish internal and external systems for reporting infringements in private and public organisations. It also sets forth detailed data protection obligations.

Thus, it requires companies to have internal systems for handling disclosures, applying to reports of acts or omissions that may constitute an infringement of EU law as set out in the Directive or affect the financial interests of the EU or relate to the internal market; or may constitute a serious or very serious infringement of criminal or administrative law, including those entailing a financial loss for Spanish tax and social security authorities.

A very broad range of individuals are protected including those working in the public or private sector, shareholders, investors, volunteers and trainees. It also applies to whistleblowers after any work-based relationship has ended.

Internal Reporting Channels

Companies with 50 or more employees and other regulated entities (such as public sector institutions) must establish an internal reporting channel. That should enable the disclosure of information, in writing and/or verbally, and ensure that the identities of whistleblowers and any named third parties are protected.

The entity must also appoint a whistleblowing officer.

Reports must be investigated within three months, extendable for an additional three months. The entity must allow the person to which the report relates to be heard and inform the Spanish Public Prosecutor’s Office where the alleged situation may constitute a crime.

At the same time, Law 2/2023 creates external public whistleblowing channels supervised by the Autoridad Independiente de Protección del Informante (AAI) or by the relevant regional authority.

Any individual may inform the AAI of an infringement set out in the Law, whether in the public or private sector, directly or after making a report through an internal channel. If accepted for processing, the AAI will then investigate the veracity of the report and ultimately issue a decision. These proceedings cannot take longer than three months. Decisions by the AAI will not be appealable.

Law 2/2023 has very little regulation of the investigation procedure for private entities (Articles 10- 12), which contrasts with what is provided in relation to investigations carried out by the independent authority (Articles 16- 24).

Prosecutions which start a criminal procedure may be initiated by the competent Investigation Court or by means of a criminal claim or report. It has to be noted that in Spain the role of the Private Prosecutor, and the right for a private person as the accuser to take such action and position in the criminal proceedings, is enshrined in the Spanish Constitution as well as the SCPL (Articles 100-103). Thus, if you are the victim of a crime you may participate through your lawyer and thus take an active role in the proceedings.

Criminal claims must:

• provide the name of the claimant;
• identify the defendants (or provide details which would help with their future identification);
• describe all the relevant facts;
• request the performance of investigation procedures; and
• request preliminary injunction measures.

When criminal proceedings are initiated, the competent Investigation Court must render an admission ruling or a non-admission ruling. Both the admission ruling and the non-admission ruling could be challenged before the Investigation Court and, afterwards, before the Provincial Court by the defendants and the prosecutors. However, some courts do not allow the admission ruling to be challenged.

If the criminal claim is admitted, the Private Prosecutor has the right to file additional criminal claims during the entire investigation proceedings. In this regard, if the private prosecutor detects new facts that could be considered a crime or discovers who could be the potential defendants, it could file an additional criminal claim reporting said issues to the Investigation Court.

At present, the Spanish legislation does not provide formal alternative mechanisms to resolve a criminal investigation without a trial.

In Spain, as a general rule, it is not possible to obtain a judgment without a full trial. In some cases, a  “sentence of conformity” can be obtained, which implies a previous process of negotiation between the prosecution and the defence, in which the accused should recognise the facts attributed to them and, therefore, the waiver of the presumption of innocence, freeing the prosecution from the burden of proof of guilt. This puts an end to the process, based on utilitarian reasons or procedural economy, and the act of an oral trial is avoided (Articles 655 and 688, 784.3 and 787, and 801 of the SCPL). This possibility can be activated only in those processes in which the requested sentence is not more than six years of imprisonment.

Fraud claims in Spain are mainly, if not exclusively, of a criminal nature. The SPC includes the concept of fraud in a variety of criminal offences, and it is the cornerstone of Spain’s legal regime to fight against fraud in many sectors of social and economic lifer (contracts, labour, taxes, companies, etc).

Fraud 

The basic and more general fraudulent behaviours include swindling, malfeasance and misappropriation.

Article 248 (swindling) punishes with a prison sentence of six months to three years those who use sufficient deceit, for profit, to lead another into error so as to have them carry out a deed of disposal in their own detriment or that of another. If the amount does not exceed EUR400, a fine of one to three months should be imposed.

It is also considered swindling, the behaviour of:

• those who, for profit, unduly hinder or interfere in the operation of an information system or improperly introduce, alter,  transmit or delete computer data or use any other computer manipulation or similar artifice, to achieve an authorised transfer of any patrimonial asset to the detriment of another;
• those who, fraudulently using credit or debit cards, traveller’s checks or any other material or immaterial payment instrument other than cash or the data contained in any of them, carry out operations of any kind to the detriment of its owner or a third party;
• those who manufacture, import, obtain, possess, transport, trade or otherwise provide devices, instruments or data or computer programs to third parties, or any other means designed or adapted specifically for the commission of the fraud foreseen in this Article; and
• those who, for their fraudulent use, steal, appropriate or illegally acquire credit or debit cards, traveller’s checks or any other material or immaterial payment instrument other than cash.

According to Article 250, the crime of fraud will be punished with prison terms of one to six years and a fine of six to 12 months, when the circumstances established there are met (it affects belongings of primary necessity, dwellings or other assets of recognised social utility; the amount of what is swindled exceeds EUR50,000 or affects a large number of people; when perpetrated abusing the personal relations that exist between the victim and swindler, or if the latter takes advantage of their corporate or professional credibility, etc).

Article 252 (malfeasance) punishes with the penalties provided for in Articles 248 or 250 those who have powers to administer the assets of another under the law, granted by authority or assumed via a legal transaction, and infringe them by exceeding the limits of these powers and thus cause detriment to the assets administered.

Article 253 (misappropriation) punishes with the penalties provided for in Articles 248 or 250 those who, to the detriment of another, appropriate, for themselves or for a third party, moneys, belongings, valuables or any other moveable property they have received in deposit, for administration or for safekeeping, or by any other title that produces the obligation to deliver or return them, or who deny having received them. There are also penalties for appropriating moveable property belonging to another, apart from in the cases outlined above, but with a lesser punishment.

According to Article 255, whoever commits fraud using electricity, gas, water, telecommunications or another element, energy or fluid from outside, by any of the following means, will be punished with a fine of three to 12 months:

• using mechanisms installed to carry out the fraud;
• maliciously altering the indications or metering devices; and
• using any other clandestine means.

If the amount defrauded does not exceed EUR400, a fine of one to three months will be imposed.

All those crimes, except the crimes of malfeasance and misappropriation, entail criminal liability of legal entities.

There are other offences which captures the idea of fraud in its structure.

Securities Fraud 

Article 282 bis of the SPC punishes the managers of a company (de facto or de jure) that issue securities listed on the stock markets, falsify the economic-financial information contained in the prospectuses used to issue any financial instruments or information that the company must publish and make known pursuant to the stock market legislation, concerning its resources, activities and present and future business, in order to attract investors or depositors to  place any kind of financial asset; or to obtain financing by any means.

These crime entails criminal liability of legal entities.

Accounting Fraud

Article 290 punishes the directors of a company (companies that can be incorporated or are under formation) who falsify the annual accounts or other documents that should record the legal or financial status of the company. This falsification must be done in such a way that can be deemed as appropriate to cause financial damage to the company, any of its shareholders or partners, or to a third party. If financial damage is caused, the penalty is heavier.

Bribery of Government Officials

The SPC punishes authorities, public officers, juries, arbitrators, mediators, experts, administrators or receivers appointed by a court, bankruptcy administrators and any other actor carrying out a public duty who, to their own advantage or that of a third party, were to receive or solicit, personally or through an intermediary, handouts, favours or remunerations of any kind, or who were to accept an offer or promise to carry out an act contrary to the duties entrusted to them, or not to carry out these, or to unfairly delay those they must carry out (Article 419), or to carry out an act inherent to their office (Article 420).

The same penalties shall also be imposed if the handout, favour or remuneration were received or solicited by an authority or public officer, in the respective cases, as a reward for the conduct described above (Article 421). In addition, there is also a penalty if the subject accepts a handout or gift offered to them in view of their office or duty (Article 422).

On the other hand, the SPC also punishes private individuals who offer or deliver (even if the individual follows a solicitation) a handout or remuneration of any kind to any subject (authorities, public officers, etc) in order for the latter to carry out a deed that is against the duties inherent to their office, or an act inherent to their office, or in order for them not to carry it out, or to delay what they should carry out, or in consideration of their office or duty (Article 424).

It is worth mentioning that if the action achieved or intended by the authority or officer is related to procurement proceedings, subsidies or auctions called by public administrations or entities, the penalties shall be handed down to the natural persons and, when appropriate, the company, partnership or organisation concerned, barring them from obtaining public subsidies and aid, from entering into contracts with public sector institutions, entities or bodies and from enjoying tax and Social Security benefits or incentives for a term of five to ten years.

The terms set forth apply when the subject is:

• any individual who holds a legislative, administrative or judicial position or employment in a country of the European Union or any other foreign country;
• any individual who carries out a public function for a country of the European Union or any other foreign country, including a public body or public company, for the European Union or another international public organisation; or
• any public servant or agent of the European Union or international public organisation (Article 427).

Organic Act 1/2019 also modified Article 427, expanded the concept of public servant or agent of the European Union to any individual with public functions relating to the management of the financial interests of the European Union.

These crimes entail criminal liability of legal entities.

Influence Peddling

Article 428 of the SPC punishes any civil servant or authority who influences another public officer or authority, availing themself of the powers of their office or any other situation arising from their personal or hierarchical relation with the latter, or with any other officer or authority to attain a resolution that may directly or indirectly generate a financial benefit for themself or a third party (prison sentence of six months to two years, a fine of one to two times the benefit intended or obtained and special barring from public employment and office and from the right to stand for public office for a term of five to nine years, and if the intended benefit is obtained, these penalties shall be imposed in the upper half).

Article 429 punishes whoever influences a civil servant or authority taking advantage of any situation arising from their personal relation with them or with another public officer or authority to obtain a resolution that may directly or indirectly generate a financial benefit for them or for a third party (prison sentence of six months to two years and a fine of one to two times the benefit intended or obtained, and barring from contracting with the public sector, along with the loss of the possibility of obtaining public subsidies or aid and receiving tax or Social Security benefits or incentives for a period of six to ten years, and if the intended benefit is obtained, these penalties shall be imposed in the upper half).

Lastly, Article 430 establishes that those who, offering to behave in the manner described in the two preceding Articles, request handouts, presents or any other remuneration from third parties, or accept offers or promises, shall be punished with a prison sentence of six months to one year. If the criminal offence is committed by an authority or public officer, special barring from public employment and office and from the right to stand for public office for a term of one to four years shall also be imposed.

This Article also provides that these crimes entail criminal liability of legal entities.

Corruption Between Individuals

Article 286 bis is related to criminal offences of corruption in business.

The law punishes executives, directors, employees or collaborators of a trading company or any other firm (it includes sporting companies, executives, directors, employees or collaborators of a sporting company, whatever its legal status, as well as sportspersons, referees or judges) who, personally or through an intermediary, receives, requests or accepts (or offers or promises, as Organic Act 1/2019 set forth) an unfair benefit or advantage of any nature, for them or for a third party, as consideration for unduly favouring another in the acquisition or sale of goods or in the hiring of professional services, or in business relations (or, in case of sports, deliberately and fraudulently predetermines or alters the result of a match, game or competition of particular economic or sporting importance).

Article 286 ter punishes those who, by offering, promising or granting any undue pecuniary or other kind of benefit or advantage, corrupt or attempt to corrupt, personally or through an intermediary, an authority or civil servant, for their own benefit or that of a third party, or who attend to requests in that regard, in order for them to act or abstain from acting in relation to the exercising of public functions to obtain or conserve a contract, business or another competitive advantage in the course of international economic activities.

Article 288 provides that any criminal anti-competition action entails the criminal liability of legal entities.

Organic Law 1/2015, which came into force on 1 July 2015, and modified the SPC, established the grounds for exemption from criminal liability for legal persons if the corporate entity can show that it possesses and effectively implements a crime prevention or compliance programme. In the case of offences committed by administrators or representatives, the grounds for exemption from criminal liability will apply if the person proves:

• exemption of criminal liability of legal persons when, prior to committing the offence, organisation and management models are effectively adopted and enforced, demonstrating due supervision and control;
• supervision is entrusted to a body with autonomous powers of initiative and control;
• the perpetrators committed the offence by fraudulently eluding the organisation and prevention models; and
• the body responsible for the supervision, control and monitoring functions was not guilty of an omission or insufficient exercise of its duties.

The requirements that a criminal compliance plan must meet in order for an entity to be exempt from criminal liability are established in the SPC and include:

• identifying the activities in the context of which the offences to be prevented can be committed;
• establishing the protocols or procedures that constitute the process of formation of corporate will, decision-making and enforcement of the latter in relation to the former;
• having appropriate models for the management of financial resources that prevent the commission of the offences to be prevented;
• imposing the obligation to inform the body responsible for overseeing the operation and observance of the prevention plan of possible risks and breaches;
• establishing a disciplinary system with appropriate sanctions for breaches of the measures established in the model; and
• carrying out regular checks of the model and ultimately modify it when relevant infringements of its provisions come to light or when there are changes in the organisation, in the control structure or in the activity performed that make such changes necessary.

In those cases in which the above circumstances can only be partially confirmed, they will be considered mitigating factors.

The criminal liability of legal persons will be mitigated when, following the commission of the offences and via its legal representative:

• the infringement is confessed to the authorities before receiving knowledge of judicial proceedings in progress in relation to the same;
• the entity collaborates in the investigation of the offence, supplying new evidence that is decisive for the purpose of ascertaining the criminal liabilities derived from the facts;
• steps have been taken to repair or reduce the damage caused by the offence; and/or
• prior to the start of the oral hearing, effective measures are established in order to prevent and discover offences that may be committed using the means or under the cover of the legal person.

Accordingly, it is highly advisable for corporate entities to establish internally enforceable measures to prevent and/or discover crimes.

Such measures should be reflected in a corporate compliance, manual which should describe, among other aspects, the internal policies and procedures relating to the evaluated risks, the internal channels of upward or downward communication and the establishment of a supervisory committee.

Insider Trading

Article 285 of the SPC was introduced by the reform implemented by Organic Act 1/2019 of 20 February (Organic Act 1/2019) and specifically criminalises those who (directly or indirectly or by an intermediary), acquire, transmit or transfer any financial instruments, or cancel or modify any order related to a financial instruments, using (or recommending to use) the privileged information to which they had reserved access.

People that have reserved access to privileged information are:

• the members of management or supervisory boards of the issuer or the participant of the emission rights market;
• those who participate in the capital of the issuer or the participant;
• those who know due to exercising their professional or corporate activity, or due to the discharge of their responsibilities; or
• those who obtained it by committing a crime.

To be considered a crime, it is necessary that at least one of the following circumstances had happened:

• the profit for themself or a third party exceeded EUR600,000 or caused damage of an equal amount;
• the value of the financial instruments related was more than EUR2 million; or
• serious damage to the market’s integrity was caused.

There is also a sub-category (aggravated) that is applied when:

• the subjects habitually perpetrate such abusive practices;
• the profit obtained is notoriously large; and
• the subject is a worker from an investment firm, a credit institution, supervisory or regulatory authority, or a lead entity of regulated markets or trading venues.

The most important aspects of the reform are that the penalties are heavier (a maximum of six years) and the expansion of the cases that previously belonged to the administrative jurisdiction.

Market Abuse

Article 281 punishes those who remove raw materials or products of basic need from the market in order to interrupt supplies to a sector thereof, to force an alteration in prices, or to seriously affect consumers.

Article 282 punishes manufacturers or traders who make false claims or declare untrue features in their offers or publicly of products or services, so as to cause serious, manifest harm to consumers, without prejudice to the relevant punishment for having committed other criminal offences.

Article 283 punishes those who, to the detriment of the consumer, bill higher amounts for products or services whose cost or price is measured by automatic appliances, by altering or manipulating these.

SPC also provides penalties (Article 284) for altering prices:

• using violence, intimidation or deceit;
• disseminating news or rumours through the media using the new information and communication technologies (the Organic Act 1/2019 included, among other things, the internet), giving certain circumstances; and
• carrying out transactions to provide deceitful signs concerning the offer, demand or price of financial securities (since the Organic Act 1/2019, it does not require privileged information), giving certain circumstances.

Other important novelties from Organic Act 1/2019 are that Articles 285 bis, 285 ter, and 285 quáter, which punish market research using privileged information, provide that financial instruments could be European or Spanish, and conspiracy, conniving and provocation are punished respectively.

Insider trading and market abuse crimes entail the criminal responsibility of the legal entity, and the Organic Act 1/2019 increased the penalties: the amount of the fines has risen and allows for penalties that are deemed serious (dissolution of the legal person, suspension of its activities or closure of its premises and establishments).

There are no specific criminal banking law offences in Spain, so any criminal conducts in relation with the exercise of banking activity have to be contemplated through the general offences provided for the economic activity.

Criminal offences against the Exchequer and Social Security penalise those who, by action or by omission, defraud the central Exchequer, that of the Autonomous Communities, special provinces or local authorities, by avoiding payment of taxes, of sums withheld or those that should be withheld or deposits on account of remunerations in species or unduly obtaining reimbursements or taking advantage of tax rebates, as long as the defrauded amount (per tax and year) exceeds EUR120,000 (Article 305).

The SPC governs tax crimes in detail in Articles 305 to 310 bis.

A tax fraud crime requires both a tax due and a fraudulent intent, so negligence is not sufficient to commit criminal tax fraud. The Spanish Supreme Court’s case law establishes that the fraudulent intent usually implies a behaviour consisting of hiding or concealing the reality of the transaction or taxable event.

Thus, the decisive element to determine whether a tax case becomes a criminal proceeding is the suspicion that there has been an intention of concealment in the actions of the taxpayer. In this respect, disputes of valuations or interpretational issues should not become the basis of a criminal offence as they are technical discussions that do not demonstrate whether the taxpayer has the intention of defrauding the fiscal authorities.

Tax crimes entail criminal liability of legal entities.

Article 31 of the SPC punishes whoever is obliged by law to keep corporate accounting, books or tax records when:

• (a) they absolutely fail to fulfil that obligation under the direct assessment of the tax bases regime;
• (b) they keep different accounts that, related to the same activity and business year, conceal or simulate the true situation of the business;
• (c) they have not recorded businesses, acts, operations or economic transactions in general, in the obligatory books, or have recorded them with figures different from the true ones; and
• (d) they have recorded fictitious accounting entries in the obligatory books.

The consideration as a criminal offence of the cases of fact referred to in Sections (c) and (d) above shall require the tax returns to have been omitted, or for those submitted to provide a record of the false accounting and that the amount, by more or less, of the charges or payments omitted or forged exceeds, without arithmetic compensation between them, EUR240,000 for each business year.

The punishment is a sentence of imprisonment from five to seven months.

At the same time, Article 259, within the crimes of punishable insolvency, punishes, with a prison sentence of one to four years and a fine of eight to 24 months, whoever, in a situation of actual or imminent insolvency:

• breaches their legal duty to maintain accounting records and engages in double bookkeeping, or commits irregularities in their accounting that are significant to understanding their financial position and assets (the destruction or modification of accounting books shall also be punished, when this significantly hinders or prevents understanding their financial position and assets);
• hides, damages or destroys any documentation that the business is obliged to maintain before the term established for this legal duty has elapsed, when this significantly hinders or prevents examination or assessment of the actual economic situation of the debtor; and
• draws up the annual accounts or the accounting books in a manner opposed to the applicable regulations on commercial accounting, when this significantly hinders or prevents examination or assessment of the actual economic situation of the debtor or breaches their duty to prepare the balance sheet or inventory within the established term.

SPC provides penalties for those who:

• obtain data, written or electronic documents, computer media or other objects related thereto in order to discover a company secret (Article 278) (prison sentence of two to four years and a fine of 12 to 24 months);
• disclose or communicate a company secret, having the legal or contractual obligation of confidentiality (Article 279) (prison sentence of two to four years and a fine of 12 to 24 months); and
• perpetrate any of the previous actions with the knowledge of their unlawful origin and without having taken part in their discovery (Article 280) (prison sentence of one to three years and a fine of 12 to 24 months).

Article 281 punishes those who remove raw materials or products of basic need from the market in order to interrupt supplies to a sector thereof, to force an alteration in prices, or to seriously affect consumers (sentence of imprisonment from one to five years and a fine of 12 to 24 months).

Article 282 punishes manufacturers or traders who make false claims or declare untrue features in their offers or products or services, so as to cause serious, manifest harm to consumers, without prejudice to the relevant punishment for having committed other criminal offences (prison sentence of six months to one year or fine of 12 to 24 months).

Article 283 punishes those who, to the detriment of the consumer, bill higher amounts for products or services whose cost or price is measured by automatic appliances, by altering or manipulating these (a prison sentence of six months to one year and a fine of six to 18 months).

SPC also provides penalties (Article 284) for altering prices

• using violence, intimidation or deceit;
• disseminating news or rumours through the media using the new information and communication technologies (the Organic Act 1/2019 included the internet), giving certain circumstances;
• carrying out transactions to provide deceitful signs concerning the offer, demand or price of financial securities (since the Organic Act 1/2019, it does not require privileged information), giving certain circumstances (prison sentence of six months to two years or a fine of 12 to 24 months).

See 3.7 Cartels and Criminal Competition Law.

The SPC governs several offences related to cybercrimes. For instance, Article 197 penalises whoever, in order to discover the secrets or to breach the privacy of another, seizes their papers, letters, electronic mail messages or any other documents or personal belongings, or intercepts their telecommunications or uses technical devices for listening, transmitting, recording or playing sounds or images, or any other communication signal. Article 197 bis provides a penalty for those who access or provide another with access to a computer system or part thereof, or who remain within it against the will of whoever has the lawful right to exclude him.

There are also cybercrimes related to intellectual and industrial property (Articles 270 to 277). For instance, Article 264 punishes those who erase, damage, deteriorate, alter, suppress, or make data, computer programs or electronic documents pertaining to others inaccessible, if the result produced is serious. Article 264 bis covers computer damage by introducing or transmitting data or by destroying, harming, substituting or disabling computer, telematic or electronic storage systems.

Cybercrimes entail criminal liability for legal entities.

Organic Act 12/1995 on the repression of smuggling governs offences related to trade sanctions and export control violations. In any case, the value of the goods or the commodities involved must exceed EUR150,000.

Article 298 of the SPC punishes with a prison sentence of six months to two years whoever, for profit, and despite being aware that a criminal offence against property or the social-economic order is being committed, in which they have not intervened either as an offender or accomplice, aids those responsible to take advantage of the proceeds thereof, or receives, acquires or conceals those proceeds.

According to SPC, those criminally responsible for criminal offences are the offenders and their accessories (Article 27).

The offenders are those who perpetrate the deed themselves, alone, jointly or by means of another used to aid and abet. The following shall also be deemed offenders: (i) whoever directly induces another or others to commit a criminal offence; and (ii) whoever co-operates in the commission thereof by a deed without which a criminal offence could not have been committed (Article 28).

Accessories are those who, not being included in the preceding Article, co-operate in the perpetration of the criminal offence with prior or simultaneous deeds (Article 29).

When the Law establishes a punishment, it shall be construed that it is imposed on the offenders of the consummated criminal offence (Article 61). Offenders of an attempted criminal offence shall have a punishment imposed that is lower by one or two degrees than that set by Law for the consummated criminal offence, to the extent deemed appropriate, in view of the danger inherent to the attempt and to the degree of execution achieved (Article 62). Accomplices of a consummated or attempted criminal offence shall be sentenced to a lower degree of punishment to that set by Law for the offenders of the same criminal offence (Article 63).

The SPC criminalises those who acquire, possess, use, convert or convey assets, knowing they originate from a criminal activity, committed by themselves or by any third party, or who perpetrate any other deed to hide or conceal their unlawful origin, or to aid the person who participated in the criminal offence or criminal offences to avoid the legal consequences of their deeds (sentence of imprisonment of six months to six years and a fine from one to three times the value of the goods) (Article 301.1).

The same penalties shall be used to punish, as appropriate, hiding or concealment of the true nature, origin, location, destination, movement or rights to the assets, or their ownership, knowing that they originate from any of the criminal offences described in the preceding Section or a deed of participation therein (Article 301.2).

This crime can be committed with gross negligence (imprisonment from six months to two years and a fine of one to three times thereof).

The offender shall also be punished even though the criminal offence or the deeds punishable pursuant to the preceding Sections may have been committed, full or partially, abroad.

Money laundering entails criminal liability for legal entities.

In the crime of bribery of public officials, besides the general defences included in the SPC for any crime, Article 426 states that when a natural person, who has occasionally accept the request for a gift or other compensation made by an authority or public officer, reports the fact to the authority whose duty is to proceed to investigate the matter, before proceedings commence, as long as no more than two months have elapsed from the date of the deeds, they shall be exempt of punishment for the criminal offence of corruption.

On the other hand, for all the crimes which give rise to the criminal liability of companies (not only in the case of bribery), compliance programmes may eliminate or reduce liability for corporations. According to Article 31 bis of the SPC, if legal persons want to be exempted from criminal liability, they have to establish an organisational and management programme that should include measures of surveillance and control appropriate to prevent corruption or bribery or to significantly reduce the risk of perpetration thereof (a compliance programme). The supervision of the functioning of the compliance programme has to be entrusted to a body of the legal person with self-governing powers of initiative and control or be entrusted legally with the function of supervising the effectiveness of the legal person’s internal controls. The SPC requires any compliance programme:

• to identify the circumstances in which offences may be committed;
• to establish protocols or procedures to address the risks identified;
• to have appropriate financial controls to prevent the commission of offences;
• to impose an obligation to report possible risks and breaches to the body responsible for overseeing the functioning of the compliance programme;
• to establish a disciplinary system that duly penalises breaches of the programme; and
• to include regular review of the programme and revisions to respond to either significant breaches of its provisions or to changes in the organisation, the control structure or in the activities performed.

If these circumstances can only be partially proven, this may be taken into account for the purposes of mitigating the penalty. Not having implemented a compliance programme, a mitigating factor is also to establish, prior to the start of the oral hearing, efficient measures for the prevention and discovery of the offences that may be committed in the future with the means or under the cover of the legal person.

In Spain, there are no (de-minimis) exceptions for white-collar offences.

TPlea bargain agreements in Spain can be explained as a system of hidden plea bargains, because formally the SCPL only envisages plea bargaining when every co-defendant admits the facts and pleads guilty. In this case, the defendant has to accept the terms included in the writ of accusations (facts, legal qualification of the facts, punishment) and the sentence will reproduce those facts, the legal qualification of the facts and the punishment asked for in the accusation writ.

The legal impossibility of having a transparent and open system of plea bargain has led to a (sometimes abusive) practice which involves hidden plea bargaining between the defence lawyers and the Public Prosecutor. Defence attorneys negotiate informally with Public Prosecutors, and, when they reach an agreement, the defendant who accepts the deal, admits the facts and pleads guilty “pretending” to go through the motions of a trial because they make statements. The Prosecutor keeps their word and, at the end of the trial, modifies the charges reducing them so the sentence will be reduced accordingly from what they were seeking before for the co-operation of the defendant.

For individuals, if the convict confesses their criminal offence to the authorities before having knowledge of the judicial proceedings brought against them, this has to be taken into consideration as a circumstance for mitigating the criminal accountability.

For companies that have collaborated in the investigation of the deeds, providing evidence throughout the proceedings that is new and decisive in clarifying the criminal liabilities arising from the deeds, this has also to be taken into consideration as a circumstance for mitigating the criminal accountability.

Law 2/2023 on the protection of persons reporting regulatory infringements and the fight against corruption entered into force on 13 March 2023, transposing the EU Whistleblowing Directive 2019/1937 into law.

The Law aims to provide suitable protection for persons reporting acts or omissions that may amount to any of the infringements contained in the Law, which means infringements of EU Law as well as serious or severe criminal or administrative infringements.

Obliged entities must have an internal reporting channel in place, as well as management and protection systems for preventing retaliation against informants. In the private sector this includes:

• corporations with 50 or more employees;
• certain legal persons in the financial sector or those with obligations relating to the prevention of money laundering or terrorist financing, or transport and environmental security; and
• political parties, trade unions, business organisations and foundations that receive or manage public funds.

The Law allows companies in the private sector with between 50 to 249 employees to share internal reporting channels as well as resources for receiving and processing complaints. In addition, groups may have a common reporting system and appoint a single person to be responsible.

In the public sector, the Law has extended the obligation to have internal reporting channels to its full extent. All public entities must set up a secure reporting system regardless of the number of employees.

For obliged companies, the Law sets out an infringements and penalty system with three categories: minor, serious and very serious. A breach of the obligation to have an internal reporting system is a serious infringement, with fines ranging between EUR300,000 to EUR1 million for legal entities. In particular, not establishing an internal information system may lead to penalties ranging from EUR600,000 to EUR1 million. These fines will be imposed along with:

• a public warning;
• a prohibition to obtain subsidies or tax benefits for a maximum of four months; or
• a temporary suspension of the administrative authorisation to operate.

The “very serious” bracket can result in a public reprimand or a ban on tax benefits for a period of up to four years, or a ban on public sector contracting for up to three years. The sanctioning procedure will also consider fines of up to EUR300,000 for individuals who aim to hinder disclosure or prevent investigation. Penalties of between EUR600,000 and EUR1 million may also be published in the Official State Gazette.

Communication or public disclosure of information, knowing it to be false, will also be punishable by law. Fines imposed in Spain are the highest in Europe.

Anonymous reports are allowed, and the whistleblowing system must contain the necessary mechanisms to make this possible.

A response to the reporting person about the investigation process must be provided within three months, although this period may be extended for a further three months if the complaint is complex.

Under the Law, acts constituting retaliation against whistleblowers and third parties are prohibited. The legislation sets out a number of different acts that can be considered reprisals:

• suspension of the employment contract;
• dismissal or termination of the employment relationship (including failure to renew or early termination of an employment contract after the trial period has ended);
• imposition of any type of disciplinary measure;
• demotion or withholding of promotion;
• substantial modification of working conditions; and
• failure to convert a temporary employment contract into a permanent one when the employee had legitimate expectations of being offered permanent employment, among others.

The Law does not take into account reports linked to complaints about interpersonal conflicts as well as information that is already known or in the public realm. It also neglects information considered hearsay which cannot be considered credible. 

An AAI, depending on the Ministry of Justice endowed with sanctioning power, will be created to manage an external reporting channel.