Molins News ComplianceKeys#3: What crimes can a legal entity be held liable for in Spain? A view from Compliance.

ComplianceKeys#3: What crimes can a legal entity be held liable for in Spain? A view from Compliance.

ComplianceKeys#3

In accordance with the model for attributing criminal liability to legal persons introduced by the Spanish legislature in the reform of the Criminal Code carried out by Organic Law 5/2010 of 22 June, legal persons cannot be held criminally liable for any offence, but only for those cases expressly provided for by law.

This is known as a numerus clausus model or catalogue (as opposed to a numerus apertus model, in which legal persons could be held liable for any offence defined in the Criminal Code).

From a Compliance perspective, this model clearly determines which areas of criminal risk must be identified, assessed and controlled within crime prevention programmes.

The numerus clausus catalogue of offences for which legal persons may be held liable in Spain has been reformed on several occasions since its introduction, resulting in its current version, which includes more than forty (40) criminal offences.

Specifically, the reforms that have affected the list of offences for which legal persons may be held liable are as follows:

• Organic Law 3/2011, of 28 January, on the general electoral system.
• Organic Law 6/2011, of 30 June: on smuggling.
• Organic Law 7/2012, of 27 December: on transparency and the fight against tax and social security fraud.
• Organic Law 1/2015, of 30 March: introduced various offences liable to generate criminal liability for legal persons and incorporated for the first time the possibility of obtaining an exemption or mitigation of criminal liability through the implementation of criminal Compliance systems, thus creating a clear regulatory incentive for the adoption of effective compliance programmes for the prevention and detection of offences, as introduced in previous Compliance Keys.
• Organic Law 1/2019, of 20 February: transposed European Union directives in the areas of finance (notably the introduction of the offence of embezzlement in the numerus clausus catalogue), terrorism and other international issues.
• Organic Law 10/2022, of 6 September: on conduct against integrity (crimes of workplace harassment, sexual harassment, among others).
• Organic Law 7/2023, of 28 March: on the protection of animal rights and welfare.

Thus, the current list of offences for which, in accordance with Article 31 bis of the Criminal Code, legal persons may be held criminally liable includes the following types:

1. Illegal trafficking in organs and their transplantation (Art. 156 bis CP).
2. Crimes against moral integrity (Art. 173.1 CP).
3. Trafficking in human beings (Art. 177 bis CP).
4. Sexual harassment (Art. 184 CP).
5. Prostitution and exploitation and corruption of minors (Articles 187 to 190 of the Criminal Code).
6. Discovery and disclosure of secrets and computer hacking (Articles 197 to 197 quinquies of the Criminal Code).
7. Fraud and other types of deception (Articles 248 to 251 bis of the Criminal Code).
8. Obstruction of enforcement and punishable insolvency (Articles 257 to 261 bis of the Criminal Code).
9. Computer damage (Articles 264 to 264 quater of the Criminal Code).
10. Offences against intellectual and industrial property (Articles 270 to 277 of the Criminal Code).
11. Offences involving the discovery and disclosure of trade secrets (Articles 278 to 280 of the Criminal Code).
12. Offence of misappropriation of raw materials and essential goods (Article 281 of the Criminal Code).
13. Advertising offences (Article 282 of the Criminal Code).
14. Investment fraud (Article 282 bis of the Criminal Code).
15. Fraudulent invoicing (Article 283 of the Criminal Code).
16. Price fixing and market manipulation (Article 284 of the Criminal Code).
17. Crimes of insider trading (Articles 285 to 285 quater of the Criminal Code).
18. Fraud involving communication and interactive services (Article 286 of the Criminal Code).
19. Money laundering (Articles 301 and 302 of the Criminal Code).
20. Illegal financing of political parties (Article 304 bis of the Criminal Code).
21. Offences against the Treasury and Social Security (Articles 305 to 310 bis of the Criminal Code).
22. Fraud against the general budget of the European Union (Article 306 of the Criminal Code).
23. Fraud involving subsidies and public aid (Article 308 of the Criminal Code).
24. Offences against the rights of foreign nationals (Article 318 bis of the Criminal Code).
25. Offences involving illegal construction, building or urban development (Article 319 of the Criminal Code).
26. Offences against natural resources and the environment (Articles 325 to 331 of the Criminal Code).
27. Offences against animals (Articles 340 bis to quarter of the Criminal Code)
28. Offences relating to nuclear energy and ionising radiation (Article 343 of the Criminal Code).
29. Offences involving risk caused by explosives and other agents (Article 348 of the Criminal Code).
30. Public health: medicines and medical devices (Articles 359 to 362 sexies of the Criminal Code).
31. Public health: food fraud (Articles 363 to 366 of the Criminal Code).
32. Public health: drug trafficking (Articles 368 to 369 of the Criminal Code).
33. Falsification of means of payment (Article 386 of the Criminal Code).
34. Counterfeiting of credit and debit cards and traveller’s cheques (Article 399 bis of the Criminal Code).
35. Corruption offences: public sector and private sector (Articles 286 bis and ter and 419 to 430 of the Criminal Code).
36. Embezzlement offences (Article 435 of the Criminal Code).
37. Hate crimes and discrimination (Article 510 of the Criminal Code).
38. Terrorism offences (Articles 571 to 580 bis of the Criminal Code).
39. Smuggling offences (Article 2 of Organic Law 12/1995).
40. Price fixing in public tenders and auctions (Article 262 of the Criminal Code).
41. Offences against workers’ rights (Articles 311 to 318 of the Criminal Code)
42. Offences committed by criminal organisations (Articles 570 bis to 570 quarter of the Criminal Code)
43. Other risks linked to Article 129 of the Criminal Code (genetic manipulation, among others)

Finally, it is worth briefly considering whether a numerus clausus model (as extensive and expansive as the current one) is the most appropriate option for determining which crimes legal persons may be held liable for.

In terms of criminal Compliance, the advantage of this model is clear: it provides greater legal certainty and allows companies to accurately identify the specific criminal risks that they must consider in their risk maps and prevention programmes.

However, due to its expansive tendencies, such as including conduct that is not typical of normal business contexts, such as child prostitution or organ trafficking, it would be appropriate to consider the possibility of moving towards a more flexible model, similar to that existing in other jurisdictions (such as the United States and the Netherlands, among others). This would be a numerus apertus model that would be self-regulated according to the criminological needs observed at any given time, allowing for the determination of which crimes would make sense to generate criminal liability for legal persons in accordance with the attribution requirements established in Article 31 bis of the Criminal Code, taking into account the circumstances of each specific case.

What is unquestionable is that Compliance is the cornerstone of any model aimed at preventing the commission of offences that could give rise to criminal liability for legal persons.

Compliance Department of Molins Defensa Penal.

compliance@molins.eu