"The emphasis of the law on an
effective compliance program
reflects a shift towards embedding a
culture of bribery compliance within
Spanish business."
Alfredo Guerrero
Partner
1. What is bribery?
The Spanish Criminal Code prohibits
influence peddling and both payment and
receipt of bribes to and by public officials,
persons entrusted with special public
service functions, juries, arbitrators, experts
and administrators, auditors or bankruptcy
trustees appointed by the Court. Attempting
to bribe is also prohibited.
Both individuals and legal entities
(companies) can be found liable for the
offence of bribery. In particular, a company
shall be found liable when (i) the offence is
carried out on behalf of and for the benefit
of the company by its legal representatives
or administrators or by those who
individually or as a member of a corporate
body are authorized to take decisions on
behalf of the company or have power of
organization and control within the company
(the “Key People”); or (ii) the offence is
committed while carrying out the company’s
corporate activities and for the benefit of the
company by people subject to the control
and supervision of the Key People and as a
consequence of a serious breach by the
Key People of their duties of control and
supervision.
2. What are the
exceptions/defences?
The company shall not be liable if at the time
of the offence all the following conditions are
met: (a) the company has adopted and
successfully implemented corporate
compliance programs designed to control
and prevent bribery offences or to significantly
reduce the likelihood of such offences being
committed; (b) the supervision of the
compliance of such compliance programs is
entrusted to a body of the company with
independent powers or to an entity legally
entrusted with the function of supervising the
effectiveness of the internal controls of the
company; (c) the individual liable for the
offence fraudulently eluded the corporate
compliance program; and (d) the body
mentioned in condition (b) has not
insufficiently complied with their functions of
control and supervision.
Less severe sanctions will be imposed if the
same internal procedures are implemented
after the offence is committed but before the
oral trial begins. Such internal procedures do
not affect the liability of individuals acting on
behalf of and for the benefit of the company
who will remain liable in any event.
3. What are the sanctions?
Sanctions can include a maximum of six
years’ imprisonment for individuals and
fines of up to €9,000,000 (for legal
entities) or €288,000 (for individuals).
Additional sanctions for legal entities
might include: (i) suspension of the
company’s activities for a maximum of five
years; (ii) closure of the company’s
premises for a maximum of five years; (iii)
an administrator being appointed by the
Court to run the company; and (iv)
dissolution and termination of the
company.
More from the Anti-Bribery and Corruption Guide:
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