ESG Compliance and Criminal Liability in Spain (2026)

Sustainability has ceased to be merely a reputational matter and become a source of corporate criminal risk. The CSRD (Corporate Sustainability Reporting Directive) and CSDDD (Corporate Sustainability Due Diligence Directive) impose reporting and due-diligence obligations that are not criminal in themselves, but their breach may go hand in hand with offences that do give rise to the legal person's liability (Art. 31 bis CP), such as environmental offences or misleading advertising. As criminal lawyers specialising in compliance, we explain the new ESG criminal-risk framework.

The New Framework: CSRD and CSDDD

Directive 2022/2464/EU (CSRD), applicable from the 2024 financial year to the first large companies and phased in (under a timetable postponed by Directive (EU) 2025/794), requires the publication of an audited sustainability report under the ESRS standards. Directive (EU) 2024/1760 (CSDDD) imposes human-rights and environmental due-diligence obligations across the whole value chain. The criminal impact is threefold: document falsification where the published non-financial information does not reflect reality; fraud against investors and consumers (greenwashing); and offences against workers and the environment arising from the breach of supply-chain due diligence.

Greenwashing as Misleading Advertising or Fraud (Arts. 282 and 248 CP)

Greenwashing consists of passing off as sustainable an activity that is not. It may fall under Article 282 CP (misleading advertising), where false claims about environmental characteristics may cause serious and manifest harm to consumers, or under Article 248 CP (fraud), where sufficient deception for profit leads consumers, investors or lenders into a detrimental act of disposal. The most prosecuted cases are green labelling that does not meet the EU Taxonomy criteria, green bonds whose funds go to non-eligible purposes, and fictitious carbon offsets. Misleading advertising carries 6 months to 1 year in prison or a fine of 12 to 24 months, and fraud 6 months to 3 years (1 to 6 years in the aggravated forms of Art. 250). Where greenwashing occurs through systematic channels (annual reports, prospectuses), the offence of falsification of annual accounts (Art. 290 CP) or, in the prospectuses of listed issuers, that of Art. 282 bis CP (one to four years' imprisonment) also comes into play.

Document Falsification in ESG Reports

The CSRD sustainability report, once audited and filed with the Commercial Registry, acquires the status of a commercial document with effect against third parties. Altering or forging it constitutes an offence of falsification of a commercial document under Article 392 CP, with penalties of 6 months to 3 years in prison and a fine; for a private individual, misstating its content is not an offence. Directors who approve or consent to manipulated data in ESG metrics may also incur the specific offence of Article 290 CP. The chain of responsibility extends to board members, financial and sustainability directors, auditors and external advisers who design manipulated calculation methodologies.

ESG Compliance Programme: Key Elements

The Art. 31 bis CP prevention programme must incorporate a specific ESG module. The essential elements are: an ESG risk map, data-capture procedures with documentary traceability, double validation of critical quantitative data, a specific ESG whistleblower channel, director training and periodic internal audit. Art. 31 bis CP requires the programme to be suitable and effectively applied — not merely approved on paper.

Defence Strategies in ESG Investigations

• Proof of compliance: providing the prevention-programme documentation early, seeking the exemption of Art. 31 bis.2 CP.
• Breaking the causal link: proving the investigated director's conduct evaded the internal controls in force.
• Technical expert evidence: hiring experts in ESG methodologies (GHG Protocol, GRI) to validate the reasonableness of the published calculations.
• Cooperation with the authority: a professional internal (forensic) investigation whose results can be offered to the prosecution as active collaboration.