Criminal infringements are classified into the following categories of offences (Article 13 of the Criminal Code):

• serious;
• less serious; and
• minor offences.

Penalties are fixed and limited in relation to this classification, so that there is a correlation between the seriousness of the offence and the possible penalties.

All criminal offences in Spain have the following common elements:

• human acts;
• provided for by law (tipicidad);
• deemed unlawful (antijuricidad);
• carried out while the offender is aware of unlawfulness (culpabilidad); and
• deserve to be punished (punibilidad).

Spanish law also provides for completed and uncompleted attempted criminal offences (Article 15 of the Criminal Code). Conduct in which all or part of the external acts that should produce the intended result are perpetrated, yet this result is not attained by virtue of a cause beyond the offender’s control (Article 16 of the Criminal Code).

The statute of limitations for criminal offences varies from five to 20 years, depending on the maximum sentence for each offence, with the exception of slander and defamation, which are subject to one-year statutes of limitation.

There are no statutes of limitation for the following:

• crimes against humanity;
• genocide;
• crimes against protected persons or assets in an armed conflict; and
• terrorism (if this caused the death of a person).

The statute of limitations begins to run on the day on which the offence was committed (Article 131 of the Criminal Code).

For continuing, permanent, or assiduous offences, the statute of limitation begins to run on the day on which the last action took place, or from the day when the unlawful situation or conduct ceased (Article 132 of the Criminal Code).

Article 23 of the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial) grants jurisdiction to Spanish courts to prosecute:

• crimes committed in Spain;
• crimes committed outside the national territory, provided that the criminally responsible parties are Spanish nationals or foreigners who have acquired Spanish nationality after the commission of the act and some requirements are met; and
• some offences committed by Spanish nationals or foreigners outside the national territory.

Therefore, the following crimes can be prosecuted in Spain.

• Crimes committed by a Spanish citizen (or by a foreigner naturalised in Spain after the facts) as long as certain requirements are met:
1. the crime is also punishable in the place where it occurred;
2. the public (or private) prosecution requests the initiation of proceedings in Spain; and
3. the offender has not been convicted, acquitted, or pardoned abroad.
• Offences affecting the national interests of Spain (eg, high treason, counterfeiting money, falsification of official documents, etc).
• Crimes specifically included in Article 23 of the Organic Law of the Judiciary if the requirements established for each of them are met.

For instance, international bribery can be pursued if:

• the person under investigation is a Spanish citizen;
• the person under investigation is a foreigner who resides in Spain;
• the offence has been committed by the director, administrator, employee or collaborator of a commercial organisation, or of a company, association, foundation or organisation that has its registered office or registered office in Spain; or
• the offence has been committed by a legal person, company, organisation, group or any other type of entity or group of persons that has its registered office in Spain.

These provisions shall not apply in the following circumstances.

• An International Court has initiated proceedings for the investigation or prosecution of such offence.
• If a national court of the country in which the offence occurred has initiated criminal proceedings provided that:
1. the person under investigation is not in Spain; or
2. the person under investigation has been requested to be extradited to either the place where the offences were committed, the place of nationality of the victims, or to be brought before an International Criminal Court for prosecution.

The above provisions shall not apply when the state that should investigate is unwilling or unable to pursue the investigation.

Article 31 bis of the Criminal Code provides that companies can be convicted if their directors or employees commit a criminal offence in the exercise of their functions and, as a result of their conduct, the company directly or indirectly benefits.

In this regard, it is important to highlight that not all the indictable offences can be committed by legal persons, but only those expressly provided for in the Criminal Code (eg, bribery, tax fraud and money laundering). It is a closed list of offences, mostly related to economic activity.

Article 31 bis 2 of the Criminal Code provides that, in relation to offences committed by managers, companies may have their criminal liability exempted or mitigated if:

• organisational models that include monitoring and control measures have been adopted in the organisation prior to the commission of the offence;
• the supervision of the model has been entrusted to an independent body with powers of initiative and control;
• the offenders have committed the offence by fraudulently eluding the prevention model; and
• there has been no omission or insufficient exercise of the supervisory function.

Article 31 bis 4 of the Criminal Code foresees that, regarding offences committed by employees, companies may be exempted or mitigated from criminal liability if they prove that, before the offence was committed, they already had an organisational and management model adequate to prevent offences such as the perpetrated.

Finally, Article 31 bis 5 of the Criminal Code establishes a list of de minimis requirements that compliance systems must be met in either of the aforementioned cases for entities to obtain such exemption or mitigation.

They must:

• identify the main areas in which the offences to be prevented may occur;
• establish protocols that regulate the will and decision-making system of the legal person;
• have financial asset management models;
• impose a general obligation to report potential risks and breaches to the body in charge of monitoring the programme;
• establish a disciplinary regime to appropriately sanction non-compliance with the compliance model; and
• conduct periodic audits of the programme and, eventually, when material breaches of its provisions occur or the organisational structure or activity of the company changes.

The Spanish system therefore requires the prior commission of a crime by a natural person (director or employee) to trigger the company’s criminal liability, but this is based on the lack of internal mechanisms (the so-called ethical culture in the organisation) that would have prevented the commission of the crime.

Natural and legal persons may be held liable for the same offence, but each of them for their own conduct. Their liabilities are different and separate.

Therefore, a company could not be automatically criminally liable because one of its managers or employees is convicted or vice versa. Similarly, there is no automatic personal liability for managers in the event that the legal person is convicted.

With regard to transformation, mergers, absorption or divisions, Article 130.2 of the Criminal Code stipulates that whenever the transformed company may be potentially liable for an offence, its liability will be transferred to the resulting entity.

Notwithstanding the above, recent resolutions by the National Court (Audiencia Nacional) tend to restrict the scope of this provision, limiting it to those cases in which the transactions are carried out fraudulently with the sole purpose of avoiding corporate criminal liabilities.

Victims of any criminal offence are entitled to compensation. The so-called “civil liability” may consist of restitution, reparations or compensation for material or moral damages (Article 110 of the Criminal Code).

This liability is considered in Spanish law as a purely civil action that can be requested before criminal courts judging the offence for reasons of procedural efficiency. Nevertheless, injured parties are also entitled to keep this civil claim and request it before civil courts once the criminal proceedings are over (Articles 112-114 of the Criminal Procedure Act).

With regard to the so-called “class actions”, it is possible for victims’ associations to be party to the criminal proceedings on behalf of their members, provided that the individual victims authorise it.

Furthermore, when there is a plurality of victims, each one has the right to act with their own legal representation, but in these cases, judges can oblige them to merge into one or more representations, led by the same or different lawyers, according to their interests (Article 109 bis of the Criminal Procedure Act).

Latest Legal Developments

On 23 September 2022, the national parliament approved the Draft Law regulating the protection of whistle-blowers and the fight against corruption transposing the Directive (EU) 2019/1937 of the European Parliament and Council of 23 October 2019 on the protection of persons who report breaches of EU law. The main objective of the new legislation is to ensure that whistle-blowers are protected against retaliation for reporting legal violations in their organisations.

In line with the Directive’s provisions, the Draft Law provides protection and support measures for informants and establishes the creation of internal reporting channels for companies with 50 workers or more. It also creates an independent public authority entrusted with the so-called “external reporting channel” and regulates public disclosure.

Recent Case Law

High National Court

The High National Court is currently engaged in an important debate on the effectiveness of criminal compliance to avoid criminal liability of companies and to what extent this must be proven during the investigation phase of the proceedings.

In this regard, in July 2021 the Central Examining Magistrates’ Court No 6 (Juzgado Central de Instrucción nº 6) dismissed the case against two major Spanish companies, recognising that both corporations had demonstrated that they had a robust compliance programme in place at the time of the alleged offences. This decision was overturned in February 2022 by its superior, the Criminal Chamber (Sala de lo Penal), which found that insufficient evidence had been gathered in this regard and that further investigation was therefore necessary. In June 2022, the Central Examining Magistrates’ Court No 6 again dismissed the case against both companies, reiterating that no indications of a possible failure in the entities’ compliance programmes had been found. This decision was appealed again to the Criminal Chamber, which recently decided to confirm the decision of the Examining Magistrate to dismiss the case.

Whatever the outcome, the debate in the National High Court is of extraordinary significance, as it contributes to delimiting such a novel and sensitive issue as corporate criminal liability.

Case law continues to delimit the scope of fundamental rights in relation to the use of new technologies.

Supreme Court

Supreme Court judgment 2348/2022 of 15 June recognises that electronic devices are a source of personal information exceeding the secrecy of communications (Article 18.3 of the Spanish Constitution) and the right to privacy (Article 18.1 of the Spanish Constitution). The personal data contained in electronic devices, considered as a whole, reveals a precise profile of the user, which must also be protected. Judges refer to this concept as the right to “one’s own digital environment”, also known as “habeas data” (Article 18.4 of the Spanish Constitution). Therefore, a court order will always be necessary to access this information. However, the Supreme Court brings to the case its decision known as the Falciani doctrine, which establishes that the provisions against the infringement of fundamental rights in the collection of evidence apply mainly to conduct carried out by public forces but not by private individuals.

The ruling takes the opportunity to qualify that this doctrine should be understood in the sense that in cases involving private individuals, the circumstances of the case must be considered in order to decide whether or not fundamental rights have been violated.

No civil or administrative authority in Spain is competent to investigate and prosecute criminal offences. Jurisdiction in this respect corresponds exclusively to Criminal Courts. White-collar crimes are investigated and prosecuted through the same procedure as any other crime. Examining Magistrates’ Courts (Juzgados de Instrucción) are responsible for investigation during the preliminary phase of the proceedings.

Investigations can also be initiated by the police or the Prosecutor’s Office, but they must refer the investigations to the courts when indications of a crime are found.

In Spain there are many different police forces, which are mainly distinguished by the territory in which they operate (ie, local, regional, or national police). For white-collar cases, the most important division is the Economic and Fiscal Crime Unit (UDEF) of the Guardia Civil, a national police force.

The Public Prosecutor’s Office can also initiate its own investigations (Diligencias de Investigación). There is a special division, called the Anti-Corruption Prosecutor's Office (Fiscalía Anticorrupción), which specialises in financial crimes or crimes committed by public officials in the exercise of their duties.

Central Examining Magistrates’ Courts of the National High Court(Juzgados Centrales de Instrucción de la Audiencia Nacional) are competent for the crime of corruption in international transactions (Article 286 ter of the Criminal Code) and corruption offences committed in several autonomous communities (Comunidades Autónomas).

In addition, government agencies (such as the Spanish Tax Authorities, the Spanish National Securities Market Commission, the Spanish Employment Authorities, or the Spanish National Bank) may bring proceedings against individuals or companies. If during the proceedings conducted by such agencies, it is suspected that the conduct constitutes a criminal offence, the proceedings will be suspended and immediately referred to the relevant Public Prosecutor’s Office.

Once the judicial investigation has concluded, if reasonable evidence to prosecute arises from the investigation, the procedure enters what is called the intermediate phase. Thereafter, if the prosecution so requests, the Examining Magistrate will issue an order to hold a hearing (not subject to appeal, except when related to the personal situation of the accused). The hearing is the last phase of the proceedings and is always conducted by a different court to that in charge of the preliminary investigation and the intermediate phase.

The judgment is subject to appeal and/or to a second appeal before the Audiencia Provincial, the Sala de lo Civil y lo Penal del Tribunal Superior de Justicia (Civil and Criminal Chambers of the High Courts of Justice), the Sala de Apelación de la Audiencia Nacional (Appeal Chamber of the National High Court) or the Supreme Court.

White-collar investigations (like other investigations) can be initiated by a complaint filed by an individual (denuncia or querella), or by the decision of the authority to initiate the investigation (investigación de oficio).

In this regard, it is becoming increasingly common in Spain for companies to report facts discovered in their organisations as a result of an internal investigation.

There are three possible investigating authorities: the police, the Public Prosecutor's Office, and the Examining Magistrates’ Courts (apart from government agencies which may refer their investigations to the Public Prosecutor's Office if there are indications of a crime).

In any case, investigations carried out by the police and the Public Prosecutor's Office (if facts are sustained) will end up in the Examining Magistrates’ Courts, as in Spain criminal investigation must always be carried out by a judge.

The Public Prosecutor’s Office has broad powers to carry out its inquiries (Diligencias de Investigación), as it can, for example, give orders to the Police and Public Administrations, summon people to give depositions, etc. The only limit would be the constitutional rights of citizens, which can only be restricted by judicial authorisation.

In Spain there are no official guidelines that regulate the initiation of the investigation, apart from what is foreseen in the Criminal Procedure Act. Notwithstanding the above, the Public Prosecutor’s Office periodically issues internal guidelines (Circulares de la Fiscalía General del Estado) regarding the interpretation of new laws. Parties, including courts, usually follow these interpretations, although they are not binding on them.

Some government agencies, the Public Prosecutor’s Office and the Examining Magistrates Courts are entrusted with powers to investigate criminal offences.

These authorities have the capacity to conduct any investigative measure that may shed light on the facts under examination, such as requiring the production of documents or summoning a person for questioning.

Nevertheless, restrictions may be faced regarding measures involving fundamental rights (eg, intervention of personal communications, the search and raid of private premises, etc). These measures may only be taken in exceptional circumstances and are subject to reasoned authorisation by the corresponding Examining Magistrates’ Court.

Regarding investigations involving companies, it is currently being debated by the courts and academics whether Examining Magistrates’ Courts can require a company under investigation to provide documentation to the proceedings that could incriminate it. In this regard, the National High Court has recently issued a resolution upholding the company’s right not to hand over documentation the existence of which depends on the will of the suspect and not on a legal obligation.

Examining Magistrates can order a raid of a company and seize documents (diligencia de entrada y registro) but it must be demonstrated that it is necessary, justified and proportional, as well as being agreed by means of a reasoned order establishing that there are documents, effects, books or papers in the domicile to discover or prove the commission of the crime.

The Criminal Procedure Act provides for companies to appoint a person to represent them before the Examining Magistrates Courts, who will also be responsible for giving the deposition on their behalf (Article 109 bis).

Internal investigations are a fairly recent practice in Spain, but they are increasingly unavoidable in the prevention and prosecution of criminal offences in organisations.

There is no legal obligation to carry them out, but their absence can be considered as a failure of the ethical culture in companies and, therefore, provided that the other requirements are met, lead to the conviction of the entity.

Criminal courts tend to consider internal investigations as a sign of the effectiveness of the corporate compliance programme and as an important tool for judicial investigations. However, this is an issue that is currently under debate in Spain.

Moreover, Guideline 1/2016 of the Public Prosecutor's Office (Circular 1/2016 de la Fiscalía General) states that the behaviour of the entity after the discovery of the internal offence should be considered when assessing its “compliance culture”. In this regard, a robust internal investigation could demonstrate the company's commitment to ethical behaviour.

In any case, there are no official guidelines governing internal investigations. At most, there are some advice books and best practice documents issued by individuals.

The legal instruments available for mutual legal assistance and cross-border co-operation can be classified into two main groups.

EU Countries

Spain incorporated into its domestic legislation, through Law 23/2014 of 20 November, instruments originating from the legal provisions of the European Union which are used by its members (eg, the European Arrest Warrant or the European Investigation Order).

Based on the principles of mutual trust and mutual recognition of judgments, these provisions aim to simplify assistance between EU states.

In this sense, these instruments will be recognised and enforced almost automatically in the receiving state, provided that they have been correctly transmitted by the competent authority of the issuing state and there are no specific grounds for refusal.

The circumstances allowing for the refusal of the instrument are restricted by law, and they include that:

• the facts took place in Spain; or
• Spain is competent to judge the facts and the subject matter requested.

Non-EU Countries

Any other co-operation with non-EU countries will be done through letters rogatory, as provided for in the corresponding treaties between the countries.

Extradition

Extradition is regulated by Law 4/1985 of 21 March 1985 and multilateral or bilateral treaties with other countries. There are no special provisions for white-collar crimes, which are treated in the same way as any other prosecutable offence.

Subjects may be surrendered in the following cases:

• they are requested to be tried abroad for a criminal offence charged in Spain and in the requesting country with at least one year of imprisonment; or
• to serve a custodial sentence of at least four months.

Extradition may be refused, for instance, in the following circumstances.

• Facts underlying the request are not criminal under Spanish law (principio de doble incriminación). In addition, extradition may be refused for political or military offences or exceptional courts.
• The requested person has Spanish nationality or is a foreigner over whom Spanish courts have jurisdiction.
• The criminal liability of the requested person has been extinguished according to Spanish law.
• Facts have already been tried or are being tried by the Spanish courts.
• When the requesting state does not offer the guarantees requested by the Spanish authorities.

There is no different way of initiating the prosecution of white-collar cases than in other criminal offences.

Spanish criminal procedure does not recognise the so-called “principle of opportunity” (principio de oportunidad), ie, the possibility to avoid or defer prosecution in view of the case’s circumstances.

At the end of the investigation phase of the proceeding, public prosecutors are therefore obliged to request penalties for the investigated parties for whom there are rational indications of criminal liability.

The only exception is reflected in Article 963 of the Criminal Procedure Act, which allows the Public Prosecutor’s Office to request the dismissal of the proceedings when the facts:

• are legally classified as a minor offence;
• are not particularly serious; and
• there is no public interest in their prosecution.

Spanish law does not provide for either deferred prosecution agreements or non-prosecution agreements.

Plea agreements are possible under Spanish law. Plea agreements refer to the acknowledgement by the defendant of facts and the legal classification made by the prosecution parties in exchange for a conviction on reduced charges.

Regarding the criminal proceedings more likely to be followed in white-collar cases (the Abbreviated Criminal Proceeding ‒ procedimiento abreviado), Article 787 of the Criminal Procedure Act establishes that the court will pass a convicting judgment if the penalty of prison does not exceed six years, and:

• the offence has been correctly classified;
• the subsequent penalty is acceptable for the acknowledged facts; and
• the offender states knowledge and acceptance of the agreement consequences.

Plea agreements can be presented at three different moments of the proceedings:

• in the pleadings of defence;
• in a new pleading signed by the prosecution parties and the defence; and
• before the start of the trial phase.

If the defendant is a legal person, the agreement shall be given by its especially appointed representative, provided that they have special powers of attorney.

There are other criminal proceedings in Spain in which plea agreements are not only possible, but are also particularly promoted by the law.

In fast-track trials, plea agreements may reduce the penalty by a third, provided that:

• the Public Prosecutor is the sole prosecution party and it requests to pass to the trial phase;
• the events described in the indictment have been classified as an offence punishable with a sentence of up to three years’ imprisonment, with a fine irrespective of its amount, or with another sentence of a different nature, the term of which does not exceed ten years; and
• in the case of a prison sentence, the requested penalty or the total sum of the penalties requested does not exceed, reduced by ⅓, a term of two years’ imprisonment (Article 801 of the Criminal Procedure Act).        

The Spanish Criminal Code provides for corporate criminal liability for the following white-collar offences.

• Discovery and disclosure of secrets (Article 197 et seq).
• Fraud (Article 248 et seq).
• Concealment of assets (Article 259).
• Criminal bankruptcy (Article 260).
• Offences against intellectual or industrial property (Article 270 et seq).
• Discovery and disclosure of corporate assets (Article 278 et seq).
• Offences against the market or the consumers (Article 280 et seq).
• Corruption in business (Article 286 bis et seq).
• Money laundering (Article 301).
• Tax fraud (Article 205).
• Fraud against the Social Security Treasury (Article 307 et seq).
• Fraud in subsidies and aid coming from the public administrations (Article 308 et seq).
• Offences concerning the organisation of the territory and town planning and against historic heritage (Art 319 et seq).
• Offences against the environment (Article 325 et seq).
• Public bribery (Article 419 et seq).
• Influence peddling (Article 428 et seq).
• Embezzlement (Article 432 et seq).

In addition, Organic Law 6/2011 of 30 June provides corporate criminal liability for smuggling.

The elements of each offence are detailed in its corresponding article in the Criminal Code.

Legal persons may face the following penalties:

• quota-based or proportional fines;
• winding up of the company;
• suspension of the company’s activities for up to five years;
• closure of the company’s premises and facilities for up to five years;
• barring from those activities through which the offence was committed, aided or concealed;
• disqualification from public subsidies and assistance; and
• court intervention.

Bribery

Article 286 bis of the Criminal Code punishes private-to-private corruption in business, meaning that it covers a manager or employee who, directly or through an intermediary, receives, requests, or accepts an unfair advantage or benefit of any nature whatsoever, for themselves or a third party, for improperly favouring another party in a business relationship.

Article 286 ter expressly covers corruption in international transactions, ie, it penalises an individual that, directly or through an intermediary, corrupts or attempts to corrupt a foreign public official in order to obtain or conserve a contract, business or another competitive advantage. These offences are punishable by sentence of imprisonment, fines, and special barring from practice, industry or commerce.

Articles 419-422 of the Criminal Code govern the so-called crime of acceptance of bribes (cohecho pasivo), penalising any authorities, government officials (civil servants), juries, arbitrators, mediators, expert witnesses, court-appointed trustees or receivers, bankruptcy trustees or any persons having a public role who, to their own benefit or that of a third party, receives or solicits gifts, favours or payments of any kind by themselves or through an intermediary. It also penalises those who accept offers or promises:

1. to carry out, in their official capacity, an act contrary to the duties inherent thereto;

2. to not carry out (or to unjustifiably delay) an action that they have been entrusted to carry out;

3. to carry out an act inherent to their official duties;

4. of a reward for the acts described under numbers 1 to 3 (subsequent bribery or bribery for reward); or

5. that are offered to them in consideration of their office or role.

Article 424 provides for the crime of bribery (cohecho activo), penalising any individual who offers or delivers any gifts or payments of any kind to any authorities in cases 1, 2, 3 and 5 described above. 

Article 427 governs bribery of:

• any person holding a legislative, administrative or judicial position in a country in the European Union or any other foreign country, whether by appointment or by election;
• any person holding a public appointment for a country in the European Union or any other foreign country, including a public organisation or public company, for the European Union or for any international public organisation; and
• any civil servant or agent of the European Union or of an international public organisation.

Criminal liability of companies arises in relation to the above-described crimes of bribery. These offences are punishable by imprisonment, fines, special disqualification from holding public posts and positions, and the right to stand for public office.

Influence Peddling

Article 428 et seq of the Criminal Code covers public officials influencing other public officials by using the powers of their office or any other situation arising from their personal or hierarchical relationship with the latter or with a third party to obtain a decision that may generate a benefit for themselves or for a third party.

Private individuals engaging in the same conduct in relation to a public official may be held liable for the same offence (Article 429 of the Criminal Code). In addition, these legal provisions cover the solicitation of gifts or any other remuneration to carry out such conduct (Article 430 of the Criminal Code). Criminal liability of companies arises in the case of the above-described crimes of influence peddling.

These offences are punishable by imprisonment, fines, special disqualification from holding public posts and positions, and the right to stand for public office.

Spanish law does not require the implementation of a compliance programme in companies, but this is highly recommended in relation to the exemption/mitigation from criminal liability provided for in Article 31 bis of the Criminal Code. Likewise, there are no specific legal obligations in relation to the prevention of bribery and influence peddling. However, these provisions are a fundamental part of any soft law that sets the standards to be achieved by any compliance system, such as ISO 37001:2016. In this regard, it is common for companies to introduce specific anti-corruption policies within their organisations, regulating, for example, gifts and hospitality solicited or accepted by managers or employees.

Insider Trading

Article 285 of the Criminal Code penalises two practices in this regard:

• the use of inside information by the insider; or
• the transfer of this information to a third party.

In either case the conduct will be only punished if:

• the benefit obtained or the damage exceeds EUR500,000;
• the value of the financial instruments used exceeds EUR2 million; or
• a serious impact on the integrity of the market is caused.

A qualified category is provided for under Article 285.2 of the Criminal Code with higher prison sentences if any of the following aggravating circumstances arise:

• the offender regularly carries out operations using inside information; or
• the benefit or damaged caused is notorious.

The crime of illegal use of privileged information can only be committed intentionally and constitutes one of the crimes that give rise to the criminal liability of the legal entity.

Penalties of imprisonment, fines and special barring from practice of the profession or activity are provided for in these offences.

Market Abuse

Articles 278-280 of the Criminal Code govern the crimes of industrial espionage and the disclosure and use for one’s unfair advantage of business secrets.

Articles 281 of the Criminal Code punishes with penalties of imprisonment and fines the removal of raw materials or products of basic need from the market to interrupt supplies to a sector, to force an alteration in prices or to seriously affect consumers.

Article 282 bis punishes with prison sentences those who, as de jure or de facto directors of a company issuing securities traded in the securities markets, falsify the economic-financial information contained in the issue prospectuses.

Article 284 of the Criminal Code covers market manipulation by means of three types of practices.

a)       Using violence, threats, deception, or any other trickery to influence the prices.

b)       Spreading, by itself or through the media, wholly or partly false news or rumours about persons or companies with a view to influence the price of a security or financial instrument, related commodity contracts, or benchmark indices.

c)       Making transactions or giving orders to trade which may give false or misleading indications as to the demand for, supply of, or price of a security or financial instrument, related commodity contracts, or benchmark indices; or to secure a dominant position in the market for such securities or instruments, to fix their prices at abnormal or artificial levels.

In case (b) and (c), the conduct shall only be sanctioned if:

• the profit made or damage caused exceeds EUR250 000;
• the value of the financial instruments used exceeds EUR2 million; or
• the conduct has a serious impact on the integrity of the market.

Criminal liability of companies arises in the above-described crimes of market abuse (Article 288).

These offences are punishable by imprisonment, fines and special disqualification from the exercise of the profession or activity during a period of time.

Criminal offences against the Public Treasury (tax evasion) are governed by Article 305-310 bis of the Criminal Code. A tax crime consists of tax fraud or the causing of financial loss by deceptive means, achieved by any of the following means:

• tax evasion;
• evasion of payment of amounts withheld or that should have been withheld or of pre-payments of remuneration in kind; and
• undue obtainment of a rebate or benefit in the same manner.

Moreover, to be criminally liable, the law requires that the amount actually evaded exceeds EUR120,000 per tax and year. Otherwise, the fraud will be treated as an administrative offence.

A qualified category is provided for under Article 305 bis with higher prison sentences and fines if any of the following aggravating circumstances arise:

• the amount of the defrauded quota exceeds EUR600,000;
• the fraud has been committed within an organisation or a criminal group; and
• the use of natural or legal persons or interposed entities, businesses or fiduciary instruments or tax havens or territories of no taxation hides the determination of the identity of the taxpayer or of the person responsible for the offence.

These offences are punishable by sentence of imprisonment, fines, or special barring from exercise receiving public subsidies or aids.

This corporate crime is governed by Article 290 of the Criminal Code, which regards as criminal the falsification, by the de facto or de jure directors of a company which is incorporated or in the process of incorporation, of the company’s annual accounts or other documents which must reflect the legal or financial position of the company, in such a way as to cause financial damage to the company, to any of its shareholders or to a third party.

A sub-category (aggravated) is defined in the event that effective damage is caused to the company’s assets. Prison sentences and fines are provided for this offence.

Spanish law does not protect free competition through the criminal legislation but through administrative provisions.

Regulation in this area comes from both EU and national authorities, depending on the transnational nature or the amount of the operations.

The prohibition of cartels is mainly provided for in Article 101 of the Treaty on the Functioning of the European Union (Tratado de Funcionamiento de la Unión Europea) and in Article 1 of the Spanish Law 15/2007 of 3 July.

They are prosecuted by both the European Commission and the National Commission for Markets and Competition (Comisión Nacional del Mercado y de la Competencia or CNMC), each within its own sphere of competence.

Criminal practices that may adversely affect competition can be redirected to other offences such as market abuse against consumers, or financial crimes.

Consumer Criminal Law

Article 282 of the Criminal Code covers advertising offences, ie, making false claims or stating false characteristics in products or services in a way that may cause serious harm to consumers. This offence is punishable by penalties of imprisonment and fines.

Article 283 of the Criminal Code allows for billing higher amounts for products or services for which the price is measured by automatic appliances, by altering or manipulating these appliances.

Article 262 of the Criminal Code punishes those who request gifts or promises not to take part in a public bidding or auction; those who try to keep bidders away from it by means of threats, gifts, promises or any other artifice; those who conspire among themselves for the purpose of altering the price of the auction, or those who fraudulently break or abandon the auction after having obtained the award.

These offences are punishable by penalties of imprisonment and fines.

Cybercrimes

The most noteworthy cybercrimes are the following (Article 197 bis, ter, quater, quinquies of the Criminal Code).

• Computer intrusion (Article 197 bis 1 of the Criminal Code) that punishes access or facilitating access to (part or the whole of) an information system violating the security measures and without due authorisation.
• Intercepting (not public) computer data transmissions (Article 197 bis 2 of the Criminal Code).
• Producing or facilitating third parties with tools to commit the crimes regulated in Articles 197.1 and 197.2 (Article 197 ter of the Criminal Code).
• There is an aggravated subtype if committing these crimes within a criminal organisation (Article 197 quater of the Criminal Code).
• Also, a legal person can be found criminally liable for the commission of these crimes (Article 197 quinquies of the Criminal Code).

Moreover, there are cybercrimes related to intellectual and industrial property (Articles 270-277 of the Criminal Code).

These offences are punishable by imprisonment and fines.

Protection of Company Secrets

Articles 278-280 of the Criminal Code punish the unlawful obtaining of data, written or electronic documents, computer media or other objects for the purpose of discovering business secrets.

Penalties are aggravated if the information obtained is disseminated (even if the disseminator did not take part on the secrets’ discovery) or if the person who obtained it had a contractual duty of confidentiality.

This offence is punishable by imprisonment and fines.

Financial Crimes

Article 282 bis of the Criminal Code punishes administrators (de iure or de facto) of a company issuing securities listed on stock markets that falsify the economic-financial information contained in the prospectuses of the issued products or information regarding the company that, according to the stock market legislation, must be shared with the investors.

This offence is punishable by sentence of imprisonment, without prejudice to what is set forth in Article 308 of this Code.

Smuggling

Organic Law 12/1995 of 12 December established criminal liability for those who introduce or remove goods with a value of EUR150,000 or more without the corresponding administrative authorisations.

Organic Law 6/2011 of 30 June modified several provisions regarding smuggling and also introduced the criminal liability of entities for this crime.

Articles 451 et seq of the Criminal Code provide for the criminal liability of anyone who, having knowledge of the criminal offence committed but without having intervened in it as an offender or accomplice, subsequently intervenes by:

• helping the offenders or accomplice to benefit from the offence, without seeking personal gain;
• concealing, altering or destroying evidence, effects or instruments of the offence, in order to prevent their discovery; or
• assisting the offender to evade the course of justice, or to escape or prevent capture.

This offence is punishable by a term of imprisonment not exceeding that provided for the covert offence.

Criminal liability is not established for spouses or persons linked to the offender by analogous ties, ascendants, descendants, natural or adoptive siblings, or in-laws of the same degree.

Persons who conspire to commit an indictable offence can be held criminally liable under Article 17 of the Criminal Code, which defines conspiracy as the collusion of two or more persons and their subsequent decision to carry out a crime.

Conspiracy is only punishable if it is expressly stated in the legal description of the particular offence (eg, it is provided for money laundering ‒ Article 304 of the Criminal Code).

Furthermore, persons who participate in the offence committed by another person (the offender) can also be held liable (Articles 28 and 29 of the Criminal Code).

Spanish law distinguishes between two forms of assisting the offender in the commission of the crime:

• co-operating with acts without which the criminal offence could not have taken place (cooperación necesaria); or
• simply co-operating with the perpetrator by means of prior or simultaneous acts (complicidad).

Penalties vary according to the type of co-operation. Providing the offender with essential assistance in committing the offences is punishable by the same penalties as for the offender, while simple aiding and abetting is punishable by the lowest ranking sentence that can be imposed on the offender.

Article 301 of the Criminal Code punishes:

• anyone who acquires, possesses, uses, converts or transfers assets, knowing that they originate from a criminal activity carried out by them or by a third party;
• anyone who carries out any of the above-mentioned forms of conduct to conceal or cover up their illicit origin; or
• anyone who assists a third party who has participated in these acts to avoid the legal consequence of their conduct.

These offences are punishable by imprisonment, fines, special barring from exercise of industry or profession, and the potential closure of premises.

If the acts were committed with gross negligence, the penalty shall be imprisonment from six months to two years and a fine of a maximum of three times the amount laundered.

Please note that Law 10/2010 of 28 April 2010 establishes special legal obligations for the prevention of money laundering and terrorist financing, non-compliance with which is considered an administrative offence.

This law imposes so-called “due diligence measures” (medidas de diligencia debida) on entities regarding their exposure to the risk of potential money laundering. As can be expected, the more that is exposed, the more severe the measures are.

It also sets out obligations to report suspicious transactions, as well of duties of co-operation with the authorities.

To this end, this Law designates an administrative body called SEPBLAC (Servicio Ejecutivo de la Comisión de Prevención del Blanqueo de Capitales e Infracciones Monetarias) as the supervisory authority of the system. It is in charge of investigating the communications received, among other things.

The sanctions envisaged depend on the seriousness of the infringement. The Law also establishes criteria for grading them according to the circumstances of the case.

The possible sanctions are:

• fines;
• public or private admonishment;
• removal from office; or
• barring from the exercise of industry or commerce.

In addition, managers of sanctioned companies may also be held administratively liable if the infringements are found to be caused by their wilful or negligent conduct.

The Spanish legal system is based on the presumption of innocence; a person is innocent until proven guilty. Therefore, the main defences in any criminal proceedings are to argue that the required elements of the offence have not been sufficiently proved by the accuser or to prove the lack of participation of the natural or the legal person under investigation.

As for corporate criminal liability, since it is based on the failure of a company to prevent criminal offences within its organisation (Article 31 bis of the Criminal Code), Spanish Law regulates a possible exemption (regardless of the corporate offence committed) if the company proves that before the offence was committed, it had an effective compliance programme in place which complied with the minimum requirements set out in the law (Article 31 bis 5 of the Criminal Code). So, the existence of an effective compliance programme may be an exemption from criminal liability if the requirements set out in the Criminal Code are met.

The compliance programme could be an exemption for all the offences for which the companies, according to the Criminal Code, could be criminally liable. Article 31 bis 2 of the Criminal Code regulates the possibility of mitigating the sentence if the minimum requirements of the compliance programme can only be partially accredited. Finally, not all white-collar crimes are criminalised for negligence.

Spanish law provides for de minimis exceptions for some white-collar crimes, meaning the minimum quantitative limits that the offence must exceed to be considered a crime.

Here is a list of the most important ones.

• Tax fraud: the amount not paid, or the reimbursement or tax benefits unduly obtained should exceed EUR120,000 in a year (Article 305 of the Criminal Code).
• Fraud against the EU budget: the amount should exceed EUR50,000 (Article 306 of the Criminal Code).
• Fraud against the Social Security Treasury: the amount should exceed EUR50,000 (Article 307 of the Criminal Code).
• Fraud in subsidies or aids from the public administrations: the amount should exceed EUR120,000 (Article 308 of the Criminal Code).

In addition, some legal persons are exempt from corporate criminal liability.

• Public Administrations: the State itself, territorial and institutional public administrations, regulatory bodies, public agencies and corporate entities, international organisations under public law, and others exercising public powers of sovereignty or administration are completely exempted from criminal liability. Additionally possible penalties for state trading companies executing public policies or providing services of a general economic nature are significantly limited (Article 31 bis quinquies of the Criminal Code).
• Entities without legal personality: Spanish law provides for accessory consequences for them, but no corporate criminal liability (Articles 129 of the Criminal Code).
• Entities created for the sole purpose of committing crimes: recent case law of the Spanish Supreme Court excludes criminal liability for this type of legal entities, as they are considered instruments of crime and not true legal persons.

Article 24.1.4º of the Criminal Code contemplates as a mitigating circumstance of criminal liability the fact that the offender confesses the conduct to the authorities before becoming aware of the existence of legal proceedings against them.

Case law has established the following requirements for the application of this provision:

• the disclosure must be truthful and fair;
• beyond the admission of guilt, it must be relevant to the investigation, allowing for further investigative steps to be taken;
• it must be made to the competent authorities; and
• the confessor must not know that legal proceedings have been initiated against them.

The mitigation of penalties will be especially important in cases where the collaboration shown is particularly intense.

Similar provisions are contained in Article 31 bis quater a) of the Criminal Code for legal persons.

Finally, the Spanish law foresees reduced penalties for some criminal offences that are particularly difficult to prosecute. This is the case, for instance, of Article 376 and 579 bis of the Criminal Code, which are related to public health offences and terrorism respectively.

The Spanish government has recently (on 23 September 2022) approved the Draft Law regulating the protection of whistle-blowers and the fight against corruption, transposing the Directive (EU) 2019/1937 of the European Parliament and Council of 23 October 2019 on the protection of person who report breaches of Union law.

The new regulation's main goal is to ensure indemnity for whistle-blowers against any possible retaliation.

It sets out measures to protect and support anyone who may suffer any detriment as a result of reports made regarding legal breaches within an organisation.

Moreover, it imposes an obligation on any company with 50 or more employees to have an internal whistle-blowing channel managed by an independent director or corporate body. It also provides for the establishment of an external whistle-blowing channel to an independent public authority, as well as the possibility of public disclosure.

Nevertheless, no economic incentives are available to encourage whistle-blowing. Apart from the measures to support the whistle-blowers, the leniency programme for offenders who report their own behaviour is provided.

Prior to this new regulation (which is not yet in force), companies in Spain had already put in place internal reporting channels managed by internal bodies with autonomous powers or by third parties.

The main safeguard established in these cases is ensuring confidentiality (and even anonymity) as to the identity of the whistle-blower.

In addition, it is common for companies to issue internal regulations (such the so-called “Code of Ethics” or “Code of Conduct”) that prohibit any form of retaliation against whistle-blowers and provide for disciplinary sanctions in such cases.

As a general rule and by operation of the principle of presumption of innocence and the adversarial principle, which govern the Spanish procedural system, the burden of proof falls on the prosecution. The proof that must be provided is called the evidence for the prosecution and must cover all elements of the criminal offence.

The accused only needs to deny the charges made against them. However, in practice, in order to safeguard the constitutional right to a fair defence, the defence is not limited to a merely reactive position.

However, the jurisprudence emanating from the Supreme Court and the Constitutional Court reinforces that it is up to the defence to allege and prove the facts for the application of an exonerating or mitigating circumstance. In addition, it is also up to the defence to prove the so-called “errors”, whether they are of criminalisation or of law.

Proof must have certain characteristics which conform to the standard required by law to sustain a conviction:

• courts can only take into consideration the so-called “evidence”: ie, lawful proof that has been produced during the trial phase before the sentencing judges (principio de inmediación) and which has been subject of debate between the prosecution and the defence (principio de contradicción);
• it must prove the guilt of the accused beyond reasonable doubt;
• it must cover all the elements that make up the alleged criminal offence;
• evidence must be assessed as a whole (ie, it must be assessed together with all the other elements).

Presumptions are a well-known evidentiary mechanism in Spanish criminal procedural law, whether legal or factual. Regarding legal presumptions, the most important is the aforementioned presumption of innocence, which establishes that every person must be considered innocent until proven guilty.

As for factual presumptions, Spanish law admits the evidentiary mechanism of circumstantial evidence; presumed facts can be considered to have been proved when they are necessarily derived from other facts of which there is direct evidence.

After having established that a defendant is guilty, the court has to determine the applicable sentence (penalties) within the range established in the Criminal Code for the specific criminal offence.

Likewise, the court must also follow the specific rules laid down by Articles 61-79 of the Criminal Code.

Article 66 regulates the application of the penalties depending on whether or not there are mitigating or aggravating circumstances.

In addition, the following must be taken into account:

• the personal circumstances of the defendant;
• the seriousness of the offence in the specific case (eg, the number of victims, the extent of the financial consequences, etc); and
• the applicable mitigating or aggravating circumstances.

Regarding the sentencing process, the court that has heard the case is responsible for passing judgment. Theoretically, it should do so within three days of the end of the trial (Article 203 of the Criminal Procedure Act) and within five days on the abbreviated proceeding (Article 789 of the Criminal Procedure Act). However, practice shows that this process can take months.

If the court is composed of several judges, they are obliged to reach an agreement to convict the accused party. Spanish law allows dissenting judges to express their disagreement with the majority in a separate section of the judgment.

The only exception is in jury proceedings, where the presiding judge must pass down the sentence in the case in accordance with the jury's verdict on the proven facts and the guilt of the defendant.

Deferred prosecution agreements and non-prosecution agreements do not exist in Spanish law.

Plea agreements are subject to the approval of the court. If the acknowledged facts and the agreed penalties are considered correct, their content will be transferred to the sentence, once the court has informed the defendant of the consequences of accepting the agreement (Article 787 of the Criminal Procedure Act). The sentence will be ruled orally and documented in writing after the hearing. Moreover, if the prosecutor and the parties, having heard the judgment, express their decision not to appeal, the judge, in the same act, shall orally declare the sentence final and rule on the suspension or substitution of the sentence imposed.