When can legal entities be subject to criminal liability in Spain?
ComplianceKeys#4
As has been introduced in other Compliance Keys, since the reform introduced in the Criminal Code by Organic Law 5/2010, legal entities (such as corporations, foundations, associations, etc.) may be criminally liable for crimes committed within them.
However, Article 31 bis of the Criminal Code establishes a series of specific requirements that must be cumulatively fulfilled for legal entities to be criminally liable, these are the following:
- The first requirement is that the offense committed is part of the numerus clausus catalog of offenses that may generate liability for legal entities (see ComplianceKeys#3).
- The offense has been committed by (i) a legal representative or those authorized to make decisions on behalf of the legal person or who have powers of organization and control (in general, administrators and managers); or (ii) those acting under the command or orders of these (in general, employees, agents or other persons related to the legal person).
- That whoever has committed the offense has done so in the name or on behalf of the legal person or in the exercise of its corporate activities.
- That the offense has been committed for the direct or indirect benefit of the legal entity. Direct or indirect benefit shall be understood as both clear gains, e.g., contracts, increase in turnover or market share or position, as well as other more incidental benefits, such as cost savings or penalties.
It should be noted that the criminal liability of the legal entity in no case excludes the individual criminal liability of the person or persons who have committed or participated in the crime.
Thus, only when the above requirements are cumulatively met, not having an effective Compliance System, criminal liability may be attributed to legal entities.
Compliance Department of Molins Defensa Penal.