Legal entities that can be held criminally liable in Spain.
ComplianceKeys#2
1. Which legal entities can be held criminally liable in Spain?
When defining which collective entities are liable to criminal liability, Article 31 bis of the
Spanish Criminal Code refers to "legal entities". This term is rather generic and
general, so that it should be understood as including any collective entity that has its
own legal personality.
Consequently, collective entities such as capital companies, foundations, associations
and civil societies may be held criminally liable when the requirements set out in Article
31 bis of the Spanish Criminal Code are met.
Therefore, collective entities without legal personality would be left out. For example:
- Groups of companies;
- Communities of property;
- Capital companies in the process of incorporation or;
- Civil societies without legal personality.
However, in this scenario, Article 129 of the Spanish Criminal Code provides for the
possibility of applying a set of consequences ancillary to the sentence to these entities
without legal personality. Specifically, it stipulates that "In the case of offences
committed within, with the collaboration of, through or by means of companies,
organisations, groups or any other type of entities or groups of persons which, because
they do not have legal personality, are not covered by Article 31 bis, the judge or court
may impose on these companies, organisations, groups, entities or groups one or more
consequences ancillary to the penalty corresponding to the perpetrator of the offence,
with the content provided for in letters c) to g) of section 7 of Article 33. It may also
order the definitive prohibition to carry out any activity, even if it is lawful”.
Notwithstanding the above, Article 31 quinquies of the Spanish Criminal Code excludes
the possibility of criminal liability for public entities. In particular, it establishes that "The
provisions relating to the criminal liability of legal persons shall not be applicable to the
State, territorial and institutional public administrations, regulatory bodies, agencies and
public business entities, international organisations under public law, or others
exercising public sovereign or administrative powers”.
However, paragraph 2 of the same article provides for an exception. This is that public
commercial companies that execute public policies or provide services of general
economic interest may be criminally liable. This would be the case, for example, of a
municipal trading company created by a city council for the development of certain
public services. However, they can only receive the penalties of a fine or judicial
intervention, unless these collective entities are instrumentalised in order to avoid
possible criminal liability.
Compliance Department of Molins Defensa Penal.