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Anticorruption In Spain

1. Bribery in the home (private to public)

 

1.1 The Legal Environment

Since 2010, when criminal liability for bribery and other crimes was introduced in Spain, the Spanish Criminal Code has undergone substantial changes.

The current summary of Spanish anti-bribery laws takes into account the changes to the Spanish Criminal Code that took effect on July 1, 2015.

Sections 419 to 427 of the Spanish Criminal Code regulate bribery of public authorities (cohecho).

 

1.2 What does bribery mean?

Bribery can be done by individuals in their private lives.

Bribery can be done by private persons attempting to bribe a public official (active bribery) or by corrupted public officials themselves (passive bribery) (passive bribery).

Bribery occurs when a public servant or authority receives or is offered a bribe to: (1) do an act or omission in violation of his or her position’s duties; or (2) perform any act related to the performance of his or her duties. The offense can be classified as either “passive bribery,” in which the public official or authority takes the initiative to conduct the offense (i.e., soliciting a bribe), or “active bribery,” in which the bribe is offered at the initiative of the person receiving it. Such acts must be conducted deliberately, that is, purposefully, in order to be punished.

 

1.3 What does it mean to be a public official?

The terms “public official” and “authority” are defined broadly under the Spanish Criminal Code. An ‘authority,’ according to Section 24 of the Criminal Code, is someone who has the power to give instructions or exercises their own jurisdiction, either individually or as a member of an agency, tribunal, or collective body. Meanwhile, a “public official” is someone who engages in the fulfillment of public tasks, either by operation of law or by appointment of the appropriate authorities. 1

Furthermore, Section 427 of the Spanish Criminal Code broadens the definition of public official to include officials from the European Union and other nations.

Bribery can be committed by jurors, arbitrators, experts, and “any person participating in the performance of a public service,” according to Section 423 of the Spanish Criminal Code.

 

1.4 Bribery’s Consequences

(a) For Individuals

Corrupted public officials and private individuals who corrupt public officials face the same penalties under the Spanish Criminal Code.

Sections 419 to 423 of the Criminal Code restrict passive bribery. Passive bribery is defined by four basic forms of behavior:

  • Those that consist of doing an act or omission that violates the duties expected of a public official or authority (Section 419)

  • In addition to the penalty for committing the act or omi, this is punishable by imprisonment for a period of three to six years, a daily fine (ranging from EUR 2 to EUR 400 per day) based on the accused party’s wealth and applicable for a period of 12 to 24 months, and specific disqualification from holding public office or employment for a period of seven to twelve years.

  • Those that entail doing an act in connection with the performance of a public servant’s or authority’s obligations (Section 420)

  • This is punishable by imprisonment for a period of two to four years, a daily fine ranging from EUR 2 to EUR 400 per day, which may be applied for a period of 12 to 24 months depending on the accused party’s wealth, and specific disqualification from holding public office or employment for a period of three to seven years.

  • Those whose primary goal is to reap the benefits of an action that has already been completed (Section 421)

  • This is penalized by the same penalties as Sections 419 and 420 of the Penal Code.

  • Accepting a remuneration offered to an authority or public worker in connection with his or her job or duty (Section 422), even if he or she is not required to perform any act.

  • This is punishable by imprisonment for six months to one year, as well as particular prohibition from holding public office or employment for one to three years.

  • Sections 424 and 425 of the Criminal Code regulate active bribery, which punishes a private individual for doing the following acts:

  • The giving or receiving of a gift or compensation of any sort to a public official: I for the latter to commit an act in violation of his or her office’s duties or an act in violation of his or her office’s duties; or (ii) to postpone what he or she should do, or in consideration of his or her office’s or duty’s office or duty’s office or duty’s office or duty’s office or duty’s office or duty’s office or duty’s office or duty’s office or duty’s office or duty’s office or duty

  • The giving of a gift or pay in response to a request from a government official or public servant.

  • Private people who actively bribe a public servant or authority face the same penalties as those imposed on the public servant or authority to whom the reward is offered (Articles 419 to 422 of the Criminal Code).

b) In the case of legal entities

A daily fine, the amount of which will be determined by the legal entity’s assets and may range from six months to five years (from EUR 30 to EUR 5,000 per day), or up to five times the profit made, if the profit is greater.

Furthermore, the court has the authority to impose any of the following discretionary penalties:

  • The legal entity is dissolved.

  • Suspension of its operations for a period of up to five years

  • Closure of premises and businesses for a period of up to five years

  • Prohibition to engage in the acts that lead to the offense, either temporarily (up to 15 years) or indefinitely.

  • Prohibition on receiving public subsidies, entering into contracts with the government, or receiving tax and social security incentives or benefits (for up to 15 years).

  • Judicial involvement for an indefinite period of time in all or part of the legal entity’s activities to protect the public interest and employees

 

1.5 Contributions from politics

Organic Law 8/2007, dated July 4, 2007, on the financing of political parties (Ley Orgánica de Financiación de Partidos Polticos) (as revised by Organic Law 5/2012 and Organic Law 3/2015) governs contributions to political parties. Individual contributions to political parties are generally permitted if they do not exceed EUR 50,000 per year. Contributions from legal entities and anonymous contributors are prohibited.

 

1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)

Hospitality expenses are not subject to any quantitative or qualitative restrictions under the Criminal Code. Two factors have been established by case law to assess whether a hospitality payment qualifies as private bribery:

  • It is not “socially acceptable” to offer or accept hospitality.

  • The hospitality given or received may influence the receiver’s decision.

Furthermore, the existence of a causal link between the delivery of the gift, hospitality, or pay and the public servant’s public office has been regularly demanded by Spanish courts. To put it another way, the motive for the gift must be the recipient’s position of power or position as a public worker.

There is no legal advice on the value of any benefit or its ability to influence the decision of a public servant. Whether or not a hospitality expense is bribery will have to be evaluated on a case-by-case basis, taking into account all of the facts and circumstances surrounding the case and applying the two criteria mentioned above.

 

2. Bribery in the home (private to private)

 

2.1 The Legal Environment

Bribery of private businesses or persons is prohibited under Spanish Criminal Code Section 286-bis. By amending the Criminal Code in December 2010,2 such a crime was created ex novo, satisfying the obligation contained in Framework Decision 2003/568/JAI to prevent acts designed to corrupt corporate management in the same way as bribery.

 

2.2 What is bribery in the private sector?

The act of offering, promising, giving, soliciting, accepting, or receiving an unjustified benefit or advantage that, in this case, must be intended to secure preferential treatment in the acquisition or sale of goods or in the hiring of professional services, in violation of the recipient’s obligations, is required, just as it is in the case of public bribery.

 

2.3 Private bribery’s ramifications

The following punishments are imposed under Section 286-bis of the Criminal Code:

(a) For people, incarceration (for six months to four years)

  • A fine ranging from the value of the illegal benefit or advantage to three times the value of the benefit or advantage

  • The right to engage in industrial or commercial activity has been revoked (from one year to six years)

b) In the case of legal entities

  • Daily file for up to five years (see Section 1.4 (b) first bullet point)

  • Publication of the court verdict in the appropriate government gazettes and, if requested by the victims, in general newspapers

  • The legal entity is dissolved.

  • Suspension of the legal entity’s operations for up to five years

  • The legal entity’s facilities will be shut down for up to five years.

  • Prohibition to engage in the activities that enabled the crime to be committed for a limited time (up to 15 years) or indefinitely.

  • Prohibition of receiving public assistance, entering into contracts with the government, or receiving tax or Social Security incentives or benefits for up to 15 years.

  • Judicial involvement in all or part of the legal entity’s activities for an indefinite period of time to defend the interests of the general public and, in particular, the legal entity’s employees.