Molins News Crimes for which a legal person may be liable in Spain.

Crimes for which a legal person may be liable in Spain.

ComplianceKeys#3

In view of the configuration of the model of attribution of criminal liability to legal entities introduced by the Spanish legislator in the reform of the Criminal Code carried out by Organic Law 5/2010, of June 22nd legal entities cannot be criminally liable for any crime, but only for those in which this possibility is expressly provided for.

This is what is known as a model or numerus clausus catalog (as opposed to a numerus apertus model, in which legal entities could be liable for any crime defined in the Criminal Code). 

The numerus clausus catalog of offenses for which legal entities in Spain can be held liable has been reformed on several occasions since its introduction until reaching its current version, which includes more than forty (40) offenses. 

Specifically, the reforms that have affected the list of offenses for which legal entities may be liable have been the following:

• Organic Law 3/2011, of January 28th: in matters related to the general electoral system.
• Organic Law 6/2011, of June 30th: in matters of smuggling.
• Organic Law 7/2012, of December 27th: in matters of transparency and the fight against tax and social security fraud.
• Organic Law 1/2015, of March 30th: introducing various offenses that may generate criminal liability for the legal person and the possibility of obtaining an exonerating or mitigating circumstance of criminal liability for the implementation of Compliance Systems, as will be developed in the following Compliance Keys.
• Organic Law 1/2019, of February 20th: transposing European Union Directives in the financial field (highlighting the introduction of the crime of embezzlement in the numerus clausus catalog) and terrorism and other international issues.
• Organic Law 10/2022, of September 6th: in the area of conduct against integrity (crimes of harassment at work, sexual harassment, among others).

Thus, the current list of offenses for which, in accordance with Article 31 bis of the Criminal Code, legal entities may be criminally liable, would include the following types:

1. Crimes against moral integrity (art. 173.1 CP).
2. Human trafficking (art. 177 bis CP).
3. Crime of sexual harassment (art. 184 CP).
4. Prostitution, exploitation, and corruption of minors. (arts. 187 to 190 CP).
5. Discovery and revelation of secrets and computer trespassing. (arts. 197 to 197 quinquies CP).
6. Fraud and other frauds. (arts. 248 to 251 bis CP).
7. Frustration of execution and punishable insolvency. (arts. 257 to 261 bis CP).
8. Computer damages. (arts. 264 to 264 quater CP).
9. Crimes against intellectual and industrial property. (arts. 270 to 277 CP).
10. Crimes of discovery and disclosure of trade secrets. (arts. 278 to 280 CP).
11. Withdrawal of commodities and staple products (art. 281 CP).
12. Misleading advertising (art. 282 CP).
13. Securities fraud (art. 282 bis CP).
14. Fraudulent automated turnover (art. 283 CP).
15. Price-fixing and market manipulation (art. 284 CP).
16. Insider trading (arts. 285 to 285 quater CP).
17. Fraud of communications and interactive services (art. 286 CP).
18. Money laundering (arts. 301 and 302 CP).
19. Illegal financing of political parties (art. 304 bis CP).
20. Crimes against the Public Treasury and Social Security (arts. 305 to 310 bis CP). 
21. Fraud against the general budgets of the European Union (art. 306 CP).
22. Public subsidy and aid fraud (art. 308 CP).
23. Crimes against the rights of foreign citizens (art. 318 bis CP). 
24. Illegal construction, building or urbanization (art. 319 CP).
25. Environment crimes (arts. 325 to 331 CP). 
26. Crimes of risk caused by explosives and other materials (art. 348 CP).
27. Public health: drugs and medical devices (arts. 359 to 362 sexies CP)
28. Public health: food fraud (arts. 363 to 366 CP).
29. Public health: drug trafficking (arts. 368 to 369 bis CP).
30. Counterfeit means of payment (art. 386 CP).
31. Counterfeiting of credit and debit cards and travellers’ cheques (art. 399 bis CP). 
32. Corruption offences: public and private sector (arts. 286 bis and ter and 419 to 430 CP).
33. Embezzlement (art. 432 to 435 CP).
34. Hate and discrimination offences (art. 510 and 510 bis CP).
35. Terrorism (arts. 572 to 580 bis CP).
36. Smuggling (art. 2 Organic Law 12/1995).

Finally, a brief reflection should be made as to whether a numerus clausus model (extensive and expansive as the current one) is the most correct option for the purpose of determining for which offenses legal entities may be liable.

Thus, it is clear that a numerus clausus model provides greater certainty when it comes to knowing which specific risks a given company must control at any given time.

However, its expansive tendencies and its possible incorrect definition (for example, including conduct that is not typical of normal business contexts, such as the prostitution of minors or organ trafficking, and leaving aside conduct that is clearly typical of business environments, such as crimes against workers’ rights) can distort these purposes.

In this context, it would be worth considering the possibility of introducing, as has been done in other jurisdictions (as could be the case, among others, in the United States and the Netherlands), a numerus apertus model that would be self-regulating according to the criminological needs observed at any given time (thus, a more flexible model would allow determining which crimes would make sense to generate criminal liability for legal persons in accordance with the attribution requirements established in Article 31 bis of the Criminal Code according to the circumstances of each specific case).

Compliance Department of Molins Defensa Penal

compliance@molins.eu