The key anti-bribery and corruption legislation in Spain is the Spanish Criminal Code ("Criminal Code"). The main criminal offenses on bribery are (i) public bribery; (ii) commercial bribery; and (ii) criminal political party funding. The Criminal Code also regulates other corruption-related offenses such as influence peddling, embezzlement of public funds, fraud and illegal taxation by civil servants, undue business by civil servants, among others.

Public Bribery

The Criminal Code provides for the criminal offense of public bribery, both active (the act of bribing) and passive (the act of being bribed). Public bribery may be committed when gifts or any kind of consideration are offered or given to civil servants in the following cases:

• in exchange for an act of the civil servant, which may be (i) an improper act in the course of his/her duties; (ii) the delay of a due performance; or (iii) proper conduct in the course of his/her duties; or
• when the only reason for offering/giving the gift is the fact that the addressee is a civil servant, even if he/she does not do anything in exchange.

There will still be active bribery even if the bribe is demanded by the civil servant. Additionally, facilitation payments may also be considered public bribery.

According to the Criminal Code, any person who participates in the exercise of public duties, by virtue of law, by-election or by appointment by the relevant authority is considered a civil servant. This definition has been broadly interpreted by case law, as any person providing services of public interest may be considered to be participating in the exercise of public duties. As to the need to be appointed or elected by the relevant authority, any verifiable link to such authority would suffice (e.g., an agreement). In this sense, employees of public services concessionaires would be considered civil servants, as well as managers of State-owned companies or those which share capital is mostly owned by public entities.

Basic Law 1/2019, of February 20, recently introduced an amendment in the Criminal Code whereby the concept of a civil servant was broadened in order to include any person who renders a service of public interest concerning the European Union's financial interests.

The offense of public bribery may apply to both national and foreign civil servants. Additionally, it may also apply with regard to national or foreign jurors or arbitrators, mediators, expert witnesses, judicially appointed managers or controllers, trustees in bankruptcy and employees or agents of the European Union or of public international organizations.

Commercial Bribery

The Criminal Code also punishes active and passive commercial bribery:

• Passive commercial bribery may be committed by managers, directors, employees or collaborators of a company who receive, request or accept an unjustified benefit or advantage of any nature, or an offer or a promise thereof (for him/herself or for a third party), in exchange for unduly favoring another party in the acquisition or sale of goods, in the hiring of services or in commercial transactions.
• Active commercial bribery may be committed by any person who promises, offers or gives managers, directors, employees or collaborators of a company an unjustified benefit or advantage of any nature (for themselves or for third parties), in exchange for them to unduly favor someone to the detriment of others (i.e., their competitors) in the acquisition or sale of goods, in the hiring of services or in commercial transactions.
• There is also a specific form of commercial bribery that may be committed by managers, directors, employees or collaborators of a sports company or entity, as well by players, referees or linesmen with respect to those conducts aimed at predetermining or altering deliberately and fraudulently the result of a sports event or competition of relevance. 

The Criminal Code provides for an aggravated penalty (i) when the value of the benefit or advantage is “considerably high”; (ii) when the act of bribing is not “occasional”; (iii) when bribery is committed within a criminal organization or group; and (iv) when bribery takes place with regard to businesses related to humanitarian or basic goods or services.

In view of the above, the main aspect of commercial bribery is that a benefit is provided to another person in exchange for something. That is, in exchange for being favored in commercial relations. 

Criminal Political Party Funding

Basic Law 1/2015, of March 30, which came into force on July 1, 2015, introduced for the first time in the Criminal Code the offense of criminal political party funding. This criminal offense may be committed when certain prohibited donations or contributions (“Donations”) are made to political parties, such as (i) anonymous Donations; (ii) Donations made with a specific purpose; (iii) Donations that can be withdrawn; (iv) Donations from individuals that exceed EUR 50 thousand per year; and (v) Donations from legal persons or from institutions without legal personality (regardless of the amount).

The Criminal Code provides for aggravated penalties in the following cases: (i) when anonymous Donations, the ones made with a specific purpose or those that can be withdrawn exceed EUR 500 thousand; (ii) when Donations from legal persons or institutions exceed EUR 500 thousand; (iii) when Donations from individuals exceed EUR 550 thousand per year; and (iv) Donations carried out by foreign governments, organizations or public companies that exceed EUR 100 thousand.
The Criminal Code also envisages the specific offense of participating in structures or organizations which have the specific aim of illegally financing political parties.

Basic Laws 5/2010, of June 22, 1/2015, of March 30 and 1/2019, of February 20, introduced relevant amendments to the Criminal Code Provisions on Bribery. 

Basic Law 5/2010 introduced for the first time in the Criminal Code the offense of commercial bribery in the transposition of the Directive 2003/06/EC of the European Parliament and of the Council of January 28, 2003, on insider dealing and market manipulation (market abuse). Profound amendments were also introduced to the description of public bribery (of national and foreign civil servants), especially to adjust the national legislation to the 1999 Criminal Law Convention on Corruption of the Council of Europe and the Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of the Member States of the European Union. Finally, Basic Law 5/2010 also introduced for the first time in the Criminal Code a regulation on corporate criminal liability and the possibility that companies could be held criminally liable for public and commercial bribery.

On the other hand, Basic Law 1/2015 introduced a new section to the Criminal Code specifically on “corruption in business”, rearranging the conduct aimed at obtaining an unfair competitive advantage (including commercial bribery and bribery of civil servants in international business transactions). It also introduced certain aggravating circumstances to such conduct. Finally, this Basic Law also aggravated the penalties on public bribery and introduced the offense of criminal political party funding.

Finally, Basic Law 1/2019 introduced some amendments on the criminal offenses of public bribery and embezzlement of public funds, in the transposition of the Directive (UE) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law. In this regard, it widened the concept of a civil servant and introduced the possibility of corporate criminal liability with regard to the offense of embezzlement of public funds. It also introduced minor amendments to the offense of commercial bribery, public bribery and influence peddling in view of the recommendations of the Group of States Against Corruption ("GRECO").

From a procedural perspective, Basic Law 1/2014, of March 13, introduced amendments to the Basic Law of the Judiciary by widening the scope of the jurisdiction of the Spanish Courts with regard to the offenses of commercial bribery and bribery of civil servants in international business transactions committed abroad.

Moreover, according to criminal case law, gifts or expenses that may benefit civil servants will not be considered bribes if they are of a social, customary or courtesy nature. In this sense, the value of these gifts or expenses must be insignificant, in view of the specific circumstances of each case. The Criminal Code and case law do not establish a threshold to distinguish unlawful gifts/expenses that may constitute a bribe from those of a social, customary or courtesy nature. However, in recent years some local and regional administrative regulations have established certain thresholds that affect civil servants of the relevant municipality or region. For example, the Agreement of the Governing Body of the Municipality of Madrid of November 5, 2015, and the Code of Ethics of the Municipality of Barcelona dated June 30, 2017, envisage that gifts which value exceeds EUR 50 are not considered of a social, customary or courtesy nature. Other municipalities or regions have established different thresholds.

In any case, a criminal judge or court would not be bound by said local or regional regulations. The criminal judge or court may consider that certain gifts/expenses constitute a bribe even if they comply with said regional regulations. The latter could only constitute a guide for criminal judges or courts, which would have to analyze in a case by case basis if such gifts/expenses may be considered of a social, customary and courtesy nature (in which case it would not constitute public bribery) or not.

Yes, please see our answer to "What is the key anti-bribery and corruption legislation in your jurisdiction?".

Yes, please see our answer to "what is the key anti-bribery and corruption legislation in your jurisdiction?"

Yes, please see our answer to "what is the key anti-bribery and corruption legislation in your jurisdiction?"

Any person subject to the jurisdiction of the Spanish courts may be subject to the Spanish legislation on bribery and corruption.

Spanish courts will have jurisdiction when the offense:

• is committed in Spanish territory; or
• is committed abroad by a Spanish citizen, provided that the act is a criminal offense in the relevant jurisdiction (and was not prosecuted in that or in any other jurisdiction), and a claim is filed with the Spanish judicial authorities.

Since March 2014 the Spanish courts also have jurisdiction to prosecute commercial bribery and bribery in international business transactions committed abroad when (i) the perpetrator is a Spanish citizen; (ii) the perpetrator is a Spanish resident; (iii) the offense is committed by a director, manager, employee or associate of a corporation having its headquarters or registered office in Spain; or (iv) when the offense is committed by a corporation or any type of entity or group of people having their headquarters or registered office in Spain. In those cases, Spanish Courts would have jurisdiction as long as the offense is not prosecuted by an international court, by the State where it was committed or by the State of the nationality of the perpetrator and a claim is filed with the Spanish judicial authorities.

Yes. Companies may be found criminally liable for public bribery, commercial bribery or criminal political party funding in the following cases:

• when such offenses are committed by the company’s representatives, directors or top managers or by those subject to the control of the top managers, when they act for the benefit of the company (also, when such acts were necessarily committed by someone within the company, but it is not possible to determine the specific person responsible therefor or it is not possible to initiate criminal proceedings against the relevant individual); and
• the company lacked specific and effective controls to prevent the commission of such conduct (i.e., the company lacked an efficient criminal compliance program). 

The Criminal Code describes the requirements that criminal compliance programs must meet in order to be considered effective, which were introduced by Basic Law 1/2015. The existence of a compliance program that formally meets all the requirements set out in the Criminal Code does not mean that the company will be automatically exempt from corporate criminal liability. In order for a legal entity to benefit from this exemption, the compliance program must be found to be effective and adequate to prevent the commission of crimes according to the specific circumstances of the case. Some of the elements which can be taken into account when considering the effectiveness of a compliance program are listed in Resolution no. 1/2016 of the Spanish General Prosecution Office (Circular 1/2016 de la Fiscalía General del Estado) and in the case-law of the Spanish Supreme Court. In addition, the criminal-compliance standard UNE ISO 19601 includes a number of guidelines on this issue.
 

The penalties for individuals who commit public bribery vary in view of the seriousness of the offense, but it could go up to six years of imprisonment, including a fine of up to EUR 288,000 (or, in the case of public bribery in international business transactions, a fine of up to three times the benefit obtained, if the resulting amount is higher). Debarment from exercising the public duty for up to 12 years could also be imposed on civil servants and debarment from contracting with the public administration and from obtaining public aids or tax and social security benefits could also be imposed on private individuals or on the company they represented (this penalty would necessarily be imposed in the case of public bribery in international business transactions).

The penalties for individuals who commit commercial bribery would be of imprisonment for up to four years, debarment from exercising business activities for up to six years and a fine of up to three times the value of the undue advantage provided, promised, offered or accepted. Such penalties could be aggravated in certain circumstances (e.g., when the value undue advantage is “considerably high”, when the action is not merely “occasional”, etc.).

Finally, the penalties for individuals who commit criminal political party funding would be a fine of up to five times the value of the Donations. If the mentioned aggravated circumstances concur (see the answer to "What is the key anti-bribery and corruption legislation in your jurisdiction?"), the penalty would be of imprisonment for up to four years and a fine of up to five times de illegal Donation. Such penalties could also be further aggravated if the acts are considered particularly serious. Moreover, the penalty for participating in structures or organizations aimed at illegally financing political parties would be of imprisonment of up to five years.

The general penalty that applies to companies found criminally liable is a fine, which may go up to EUR nine million in the case of public or commercial bribery (or, if the benefit obtained or that could be obtained was higher, a multiple of up to five times the value of such benefit). In the case of criminal political party funding, the fine would be of up to five times the value of the Donation. Finally, in the case of public bribery, a temporary debarment from contracting with the public administration and from obtaining public aids or tax or social security benefits could also be imposed. Aggravated penalties may also be imposed in most serious cases, such as winding-up, temporary closure of premises, etc.

Finally, the Spanish Law on Public Procurement 9/2017, of November 8, imposes a debarment from contracting with the public administration on those companies who have been convicted for public or commercial bribery or for political party funding.

Yes. A company may be exempt from criminal liability (in which case only the individual who committed the offense could be held criminally liable) if it had in place an effective compliance program to prevent the commission of the relevant offense before it took place. 

The Criminal Code sets forth the requirements that such compliance programs must meet in order for the legal person to be exempt from criminal liability. This specific regulation on compliance programs was introduced in the Criminal Code by Basic Law 1/2015, of March 30.

Additionally, recent Judgments of the Supreme Court have clarified that the accusing party has the burden of the proof on the lack of effective compliance rules within a company in order for it to be held criminally liable.

The Criminal Code does not envisage the possibility of deferred prosecution agreements or leniency agreements.

However, corporate criminal liability could be mitigated in the following cases (i) if the company self-reports before the initiation of judicial proceedings; (ii) if the company collaborates with the investigation by providing relevant proofs; (iii) if the company repairs or diminishes the damages caused before the trial; or (iv) if the company establishes effective compliance rules for the prevention and detection of future criminal offenses within the company, before the trial. 

Plea agreements could also lead to a mitigation of corporate criminal liability.