"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

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.