Contributed By RODRIGUEZ RAMOS ABOGADOS
The international conventions relating to anti-bribery and anti-corruption to which Spain is a signatory are as follows.
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.
Bribery is defined as follows:
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.
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.
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:
Fraud in public procurement is also punished, including:
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:
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.
General limitation periods for crimes are stabilised at the Spanish Criminal Code (Articles 131 and 132 CC):
The following crimes have certain time limits to be prosecuted:
Spanish criminal jurisdiction is set out in Article 23 of the Organic Law of the Judicial Power, which settles the following.
The Spanish criminal system introduced in 2010 the criminal liability of legal entities, settled by criminal courts when:
Both natural persons and companies can be held liable for the same offence but:
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 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:
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:
Incentives are also designed for corporations which (Article 31 quarter CC):
See 3.1 Limitation Period for natural persons.
Penalties for legal persons can be:
Penalties for the above offences are as follows.
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:
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.
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.
Criminal enforcement is led by the criminal jurisdiction of the Spanish judicial power.
In the case of the European Funds, the enforcement agencies are:
In the case of the protection of individuals reporting regulatory violations and combating corruption, the enforcement agencies are as follows.
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):
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:
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:
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:
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.
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:
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.
Regarding the judiciary, the Supreme Court has important pending judgments that could be solved during the next year affecting, at least:
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.
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