Spain

Reviewed April 2015
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PUBLIC OFFICIALS
    Is there an offence of bribing public officials?
    • Articles 419 to 427 of the Spanish Penal Code (Chapter V of Title XIX) contain the general regulation on bribery in Spain. There are offences of bribing public officials and accepting or receiving a bribe.

    What is the relevant test for each offence?
    • Offence of accepting or receiving a bribe

      Bribery of a public official is committed when an authority, public servant or other person who participates in the public sector (as well as members of a jury, arbitrators, experts, directors (when appointed by a judge in insolvency or criminal proceedings) or official receivers when taking part in legal proceedings) by themselves or through a third party, and for their own benefit or the benefit of a third party:

      requests, receives or accepts a present or payment offered to him or accepts an offer or promise in order:

      to carry out an act contrary to the duties inherent to his position, or

      not to carry out duties inherent to his position, or to unfairly delay the duties he must carry out

      requests, receives or accepts a present or payment offered to him or an offer or promise in order to carry out an act inherent to his position, or,

      requests or receives a present or payment because of his public office or power. 

      Offence of offering a bribe

      Bribery of a public official can be committed by an individual who commits any of the following actions:

      offers or gives a present or payment of any nature to an authority, public servant or a person who participates in the public sector:

      in order for him to carry out an act contrary to the duties inherent to his position

      in order for him not to carry out duties inherent to his position or to unfairly delay the duties he must carry out

      in order for him to carry out an act inherent to his position, or

      as a consequence of his public office or power

      agrees, at the request of an authority, public servant or a person who participates in the public sector, to give him a present or payment of any nature.

      Bribery in specific circumstances

      Bribing a public official during criminal proceedings

      The offence of bribery of a public official can also be committed during criminal proceedings by a relative of the accused party. This offence is committed when a relative of the accused offers or gives a present or payment of any nature to an authority, public servant or a person who participates in the public sector (and is connected to the criminal proceedings) or agrees, at the request of an authority, public servant or a person who participates in the public sector to give a present or a payment of any nature. The penalty is imprisonment for a period between six months and one year.

      Bribing a public official of the European Union

      All of the offences listed above will be considered an act of bribery where the public official accused or involved is a civil servant of the European Union or any State member of the European Union.

    Can corporates and individuals commit the offence?
    • Yes.  A corporation is liable for the criminal actions committed by:

      • its legal representatives and administrators when they act in the name of the corporation or on its behalf and to its benefit, or
      • employees who were able to perpetrate the acts because due control was not exercised over them by the directors of the corporation.
    Does the offence have extra-territorial effect?
    • Generally speaking, this offence does not have extra-territorial effect.

      The general rule is that the Penal Code applies only to crimes committed in Spain. According to Article 23 of the Organic Law 6/1985 of 1 July the Spanish Courts can also prosecute a number of crimes irrespective of the place where they occurred and the nationality of the person that committed them (as long as they are linked to Spain and no other country has initiated proceedings to prosecute the crime). However, the list of crimes does not include bribery of public officials of countries other than those public officials who are in Spain.

      There is a specific offence of bribery in international commercial transactions. This offence consists of offering, promising or granting any unjustified profit to a foreign civil servant or to a member of an international organisation in order to corrupt him; or agreeing to any request of this kind from a foreign civil servant with the purpose of obtaining a specific action or omission from the civil servant or to obtain or maintain a contract or an unjustified profit in international economic transactions.

    Are there any exceptions or defences?
    • An individual who has occasionally (occasionally means on a specific occasion) accepted a request by an authority or a public servant for a present or payment will be exempt from any penalty if he reports the fact to the public authority in charge of criminal investigations within a period of two months from the date of the request.

      Limits to the value of the presents/payments can be deduced from case law. Generally, small presents do not have criminal relevance (such as an invitation for a coffee or a gift of flowers).

      Certain mitigating circumstances can be applied in cases of corporate liability. These include:

      confessing to the offence(s) prior to knowledge of judicial proceedings being brought against the corporate,
      cooperating with the investigation of the offence and providing evidence during the proceedings,
      repairing or reducing the damage caused by the offence during the proceedings and prior to the trial,
      or establishing a compliance programme prior to the trial which is intended to prevent and detect offences that could be committed in the future.

      As corporate liability was only recently introduced in Spain, there is as yet no case law suggesting how mitigating circumstances should be applied in cases of corporate liability.


    What are the penalties?
    • In relation to corruption in the public sector, the penalties that can be applied are as follows:

      • Penalties for public officials
      A public official who commits an offence outlined above can be liable, depending on the circumstances, to imprisonment of up to six years, a fine and disqualification or suspension from public functions for up to 12 years.
      • Penalties for private individuals

      When an individual offers a present or a payment to a public authority or public servant, the individual can be liable, depending on the circumstances, to imprisonment of up to six years and/or a fine. If the bribery is in relation to public trading, public subsidies or a public auction, the person convicted can also be liable to disqualification from involvement in any of these processes in the public sector and the individual may be barred from obtaining social security benefits for between three to seven years.

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    PRIVATE SECTOR
      Is there an offence for bribery within the private sector?
      • Yes, under the Spanish Penal Code there is an offence of bribery in the private sector.

      What is the relevant test?
      • Bribery in the private sector is committed by any individual or corporation who, by himself or through a representative, promises or grants to managers, directors, employees or agents of an enterprise or of a corporate, association, foundation or organisation, an unjustified profit or a benefit of any nature in its favour or in favour of a third party.

        The offence is committed by any manager, director, employee or agent of any enterprise, corporation, association, foundation or organisation who, by himself or through a third party, receives, requires or accepts an unjustified profit or a benefit of any nature with the purpose of favouring someone against others, provided that that purpose does not fulfil his obligations in the acquisition or sale of goods or in the transaction of professional services.

      Can corporates and individuals commit the offence?
      • Yes. A corporation is liable for the criminal actions committed by:

        • its legal representatives and administrators when they act in the name of the corporation or on its behalf and to its benefit, and
        • employees who were able to perpetrate the acts because due control was not exercised over them by the directors of the corporation.
      Does the offence have extra territorial effect?
      • If the bribe was paid or received in Spain but the benefit, such as awarding a contract, took place in another country, the person who paid the bribe can be prosecuted in Spain.

        In addition, Spanish Courts have jurisdiction to investigate and to prosecute a Spaniard committing a bribe abroad under Section 22.2 of the Judiciary Act (Ley Orgánica del Poder Judicial).

      Are there any exceptions or defences?
      • As with the public sector offences, the mitigating circumstances that can apply in cases of corporate liability include:

        confessing to the offence(s) prior to knowledge of judicial proceedings being brought against the corporate
        cooperating with the investigation of the offence and providing evidence during the proceedings
        repairing or reducing the damage caused by the offence during the proceedings and prior to the trial, or
        establishing a compliance programme prior to the trial which is intended to prevent and detect offences that could be committed in the future.

        As corporate liability was only recently introduced in Spain, there is as yet no case law suggesting how mitigating circumstances should be applied in cases of corporate liability.

      What are the penalties?
      • Penalties for individuals

        If committed by an individual, the penalty is imprisonment for a period of between six months and four years, disqualification from involvement in any industrial or commercial activity for a period of between one and six years and a fine that can be up to three times the amount of income obtained from the criminal action.

        Penalties for corporations

        A fine may be imposed on a corporate body found guilty of this offence which may be five times the amount of the benefit obtained.

      This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.