Spanish criminal law used to follow the principle of “societas delinquere non potest” – inherited from ancient Roman law – which means that companies cannot commit crimes, only individuals may be responsible for crimes. However, Spanish lawmakers recently changed this system, switching to an Anglo-Saxon inspired model in which companies can also be charged with crimes.
Such modification has been carried out by means of an amendment of the Criminal Code (“Código Penal”). The amendment brings to the Criminal Code the following matters:
1. Companies may be charged with criminal responsibility in the following events:
2. Companies may be responsible only for some crimes (money laundering, environmental crimes, tax avoidance, etc.).
3. Mitigating circumstances for the criminal responsibility of companies: admission of the crime before the procedure starts, collaboration with the investigations of the facts and repair of the damage caused before the trial takes place.
4. Liability exemption for the adoption of prevention measures in order to avoid crimes (compliance programs). The law establishes a different regulation of the exemption depending on which crime we are dealing with:
The amendment brings also a useful regulation that establishes the content that an adequate compliance program may have. Such content is the following:
Finally, the Code establishes that the company will have to review the compliance program regularly, in order to adapt it to the changing circumstances of the company.
In small companies, the management body can assume the control functions and the implementation of the prevention measures. However, in the rest of companies those functions have to be assumed by an independent body.
To sum up, Spanish lawmakers have changed the principle of non-responsibility of companies for criminal offences to a system in which, under some circumstances, companies can be liable for crimes. The new regulation establishes a system of criminal responsibility for the company for, on one hand, crimes committed by managers and legal representatives on its behalf, and, on the other hand, crimes committed by employees; in the event that the company has failed to apply proper preventing measures. Thus, the duty of control of the implementation of the preventing measures and the issuance and application of a compliance program become particularly important for Spanish companies.
(1) “Ley Orgánica 5/2010, de 22 de junio, por la que se modifica la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal” and “Ley Orgánica 1/2015, de 30 de marzo, por la que se modifica la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal”.
(2) Small companies will be those that are allowed to submit abridged annual accounts (“cuentas anuales abreviadas”) before the Commercial Registry, in accordance with Spanish Law on Corporations.