The possible criminal relevance of Christmas gifts


Christmas is often synonymous with joy, rest and gifts. In a business context, gifts are synonymous with a good relationship with a customer, supplier or other third party, but they can also mask other, less innocent intentions.

Thus, what at first glance may appear to be a mere gift could lead to serious criminal legal consequences, both for the individuals who give or receive it, and for the entities of which they are part of. 

In this context, this Compliance Keys will analyze, on the one hand, the possible criminal relevance of some Christmas practices from the perspective of corruption offenses, especially in the private sector; and, on the other hand, it will list some behaviors that should be avoided in any case.

First of all, in order to discern when a Christmas gift can hide a corrupt practice, it is necessary to know what is considered corruption by the Spanish regulations and jurisprudence

Article 286 bis of the Spanish Penal Code defines (in simplified form) the following conducts as constituting a crime of corruption in business or between private individuals:

  • Passive corruption: the receipt, solicitation or acceptance of an undue advantage or benefit (or promise thereof) as consideration for favoring another in a business relationship.
  • Active corruption: the promise, offering or granting to a third party of an unjustified benefit or advantage as consideration for favoring him or a third party in a business relationship.

However, obviously, not every gift constitutes a corruption offense. Since the giving of gifts is a generally accepted and practiced business practice, only those that are not considered socially appropriate (not so much from a taste perspective, but from a normative adequacy perspective) may have criminal relevance.

In short, although the line between what is considered socially appropriate and what is not can be very thin (and sometimes non-existent), it is not always clear whether the gifts are socially appropriate or not, from the study of the jurisprudence on the matter, it is derived that in order for a gift not to be considered corrupting, it must meet the following requirements:

  • The gift should have a minimum value (the value of the gift should be determined based on the industry and the potential recipient).
  • Although of minimal value, the gift itself matters, it may not be unusual.
  • The gift must not have the ability to influence the specific person who is to receive it (therefore, the recipient and the timing of the gift matters).

On the other hand, as regards corruption in the public sector, regulated in articles 419 and following of the Criminal Code, the above requirements must be applied in a stricter manner than in the private sector, and each gift to be given must be carefully analyzed.

Also, it should be taken into account that the above requirements are not only applicable to gifts, but are extensible to other attentions such as invitations to lunches and dinners.

In view of the above, the following practices, by way of example, should be avoided:

  • Giving or accepting high-value gifts (such as, for example, mobile devices and other electronic items, among others).
  • Giving or accepting luxurious or exotic gifts (e.g., travel, lavish dinners, invitations to sporting events, etc.).
  • The giving or acceptance of gifts at decisive moments in the relationship with the third party (for example, in the negotiation phase of a contract, the granting of a license, among others).
  • In general, and if it can be avoided, the giving of gifts to members of the public sector.

By way of conclusion, in view of the widespread practice of gift-giving at this time of the year, as well as taking into consideration the seriousness of the penalties associated with corruption offenses (which may include fines of up to five times the amount of the benefit obtained), it is convenient to carry out awareness-raising actions to prevent what should in principle be a festive season from having very negative consequences for all parties involved.

Compliance Department of Molins Defensa Penal.

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