Corporate Criminal Liability (Art. 31 bis CP) in Spain

Since the 2010 reform of the Spanish Criminal Code (LO 5/2010), perfected by LO 1/2015, legal persons can be declared criminally liable in Spain. The conviction does not fall only on the directors or employees who materially commit the offence: the company itself can be sanctioned with multimillion-euro fines, judicial intervention and even dissolution. As criminal lawyers specialised in corporate criminal liability, we explain when this liability arises, how it is exempted through an effective compliance programme, and what to do if the indictment is already on the table.

What It Is: Autonomous Liability, Not Derivative

Art. 31 bis CP does not turn the company into an "accomplice" of the natural person's offence; it creates an autonomous criminal liability of its own. Its key features:

• It applies only to a closed catalogue of offences expressly provided for (not every offence in the Criminal Code generates corporate liability).
• The company can be convicted even without identifying the specific material author, provided it is established that the offence was committed within it.
• The extinction of the natural person's liability does not automatically extinguish that of the legal person.

The Two Routes of Imputation Under Art. 31 bis CP

Route 1 (Art. 31 bis 1.a) — Offences committed by representatives and directors:

The company is liable when the offence is committed by its legal representatives, de facto or de jure directors, or by those authorised to make decisions on its behalf. The conduct must have been carried out in the name or on behalf of the company and for its direct or indirect benefit.

Route 2 (Art. 31 bis 1.b) — Offences committed by subordinates with lack of control:

The company is liable when employees or subordinates, subject to the directors' control, were able to commit the offence because the duties of supervision, monitoring and control over them were seriously breached. Here the criminal reproach lies on the company's organisational defect.

Catalogue of Offences That Trigger Corporate Liability

Among the most relevant for businesses:

• Offences against the Tax Authorities and Social Security (Arts. 305 onwards).
• Money laundering (Art. 302).
• Fraud (Art. 251 bis). Not, however, misappropriation or unfair administration, which are not in the catalogue.
• Bribery and influence peddling (Arts. 427 bis, 430).
• Corruption between private parties (Art. 286 bis).
• Environmental offences (Arts. 325 onwards).
• Financing of terrorism (Art. 576).
• Computer offences and discovery of secrets (Art. 197 quinquies).

The Compliance Programme That Exempts Liability

Art. 31 bis 2 CP regulates the requirements for full exemption and Art. 31 bis 5 the content of the model. The company may be exempt if before the offence was committed it had adopted and effectively implemented a programme that meets the following six criteria:

1. Realistic and documented criminal-risk analysis: identify which offences may be committed in each area of the company.
2. Protocols and procedures setting how decisions are made in risk areas.
3. Financial-management models adequate to prevent the identified offences.
4. Reporting obligation to the supervisory body on detected breaches and risks (whistleblowing channel).
5. Disciplinary system that adequately sanctions breaches of the programme.
6. Periodic verification and modification when relevant infringements are revealed or circumstances change.

Programme supervision must be entrusted to a body with autonomous initiative and control powers (the Compliance Officer); in small legal persons the management body may assume it. And where a manager committed the offence, it must also have been committed by fraudulently circumventing the model, without that body failing to exercise, or insufficiently exercising, its supervision.

Penalties Applicable to the Legal Person

Art. 33.7 CP sets out a specific catalogue of penalties:

• Fine: by quotas (day-fine) or proportional to the benefit obtained or damage caused.
• Dissolution of the legal person: the corporate "death penalty", reserved for multiple reoffending or use of the company as an instrument for crime (Art. 66 bis CP).
• Suspension of activities up to 5 years.
• Closure of premises and establishments up to 5 years.
• Prohibition of the activities in which the offence was committed, temporary (up to 15 years) or permanent.
• Disqualification from obtaining subsidies and aid, contracting with the public sector and enjoying tax or Social Security benefits up to 15 years.
• Judicial intervention to safeguard rights of workers and creditors, up to 5 years.

Procedural Particularities

• The legal person is summoned as investigated and must designate a specific representative (preferably not someone co-investigated for the same facts; the law only bars designating someone who is to testify as a witness).
• It has the same rights as any investigated person: not to declare, to the last word, to remain silent.
• Proceedings can run against it even when the natural-person author has not been identified or cannot be tried.
• Cooperation with justice after the offence (delivery of evidence, self-report, repair of harm) is a mitigating factor (Art. 31 quater CP); if several concur or one is highly qualified, the penalty can be lowered by one or two degrees (Art. 66 bis CP).

Defence Strategy When the Indictment Has Already Arrived

1. Immediate audit of the existing compliance programme: identify evidence of effective implementation (committee minutes, whistleblowing-channel records, training sessions delivered, internal sanctions applied).
2. Distance the conduct from the material author: document that the offence was an individual deviation against the programme, not covered by it.
3. Adopt immediate corrective measures: programme review, internal sanction of the perpetrator, repair of harm. Activates the mitigating factor of Art. 31 quater.
4. Careful designation of the specific representative: must not be a person affected by the investigation, to avoid conflicts of interest.
5. Negotiate a plea bargain with corporate dimension: possible agreements that avoid penalties compromising the company's viability (judicial intervention vs. fine, etc.).