The Crime of Influence Peddling: Articles 428 to 430 of the Criminal Code

Using contacts to move a file forward, win a tender or speed up a licence sometimes falls into a grey area bordering on criminal law. Influence peddling —governed by articles 428 to 430 of the Spanish Criminal Code (CP)— punishes precisely the improper use of a personal, hierarchical or office-based relationship to pressure an official and obtain a resolution that generates an economic benefit. As criminal lawyers specialising in offences against the public administration and corruption, we explain what the offence punishes, its three forms, how it differs from bribery and from lawful lobbying, and how the defence is built.

What Influence Peddling Punishes

The offence punishes the conduct of influencing a public official or authority by taking advantage of the powers of the office or of any situation arising from a personal or hierarchical relationship with the decision-maker, with the aim of obtaining a resolution that may generate, directly or indirectly, an economic benefit for oneself or for a third party. The legal interest protected is the impartiality of the administration and the equal treatment of citizens before it.

The offence therefore requires three elements: influence capable of altering the decision-making process; an exploitation of the relationship —the use of the personal, hierarchical or office-based connection as a lever of pressure; and an orientation towards a resolution with economic significance. The offence is complete once the influence is exerted: the intended resolution need not be issued, nor the benefit materialise. That said, if the intended benefit is obtained, the penalties are imposed in their upper half.

The Three Forms: Arts. 428, 429 and 430 CP

The Code distinguishes three figures depending on who exerts the influence and how:

• Art. 428 CP — influence peddling by an official. The public official or authority who influences another by exploiting the powers of their office or their personal or hierarchical relationship. Penalty: imprisonment of six months to two years, a fine of one to two times the benefit sought or obtained, and special disqualification from public office and from the right to stand for election of five to nine years.
• Art. 429 CP — influence peddling by a private individual. The private individual who influences an official by exploiting a personal relationship with the decision-maker. Penalty: imprisonment of six months to two years and a fine of one to two times the benefit, together with a ban on contracting with the public sector and the loss of the possibility of obtaining public subsidies or aid and tax and social-security benefits or incentives of six to ten years.
• Art. 430 CP — offering of influence. Anyone who, offering to carry out the conduct above, asks third parties for gifts, presents or any other payment, or accepts their offer or promise. It is the figure of someone who 'sells' their ability to influence, even if they do not actually have it. Penalty: imprisonment of six months to one year; if committed by an authority or official, special disqualification is added. If a legal person is liable under art. 31 bis CP, a fine of six months to two years is imposed.

Distinction from Bribery

Influence peddling is often confused with bribery (arts. 419 et seq. CP), but the two cover different conduct. Bribery revolves around the gift or payment given or promised to the official in exchange for an act within their office. Influence peddling requires no such payment to the decision-maker: what is punished is the improper use of a relationship to undermine their impartiality.

That difference explains why the penalties for influence peddling are, as a general rule, lower than those for bribery, which reserves the most severe reproach for a direct economic exchange. In practice, the two figures may overlap in a single case —for example, where, alongside pressure through a personal relationship, there is also a payment— which calls for a precise characterisation of the facts so as not to confuse offences carrying different penalty regimes.

The Line with Lawful Lobbying

Advocating for one's interests before the administration is a legitimate activity. A company or a citizen may approach the public authorities, present arguments, file submissions and provide technical information to influence a decision. What turns that activity into a crime is not influencing, but doing so by exploiting a relationship: using a personal, hierarchical or office-based connection as a means of pressure on the decision-maker, beyond technical or legal argument.

This line is increasingly relevant given the growth of interest-group activity (lobbying), which at administrative level is being channelled towards transparency registers and codes of conduct designed, precisely, to leave a trail of contacts with public officials and to distinguish legitimate advocacy from unlawful pressure. For a company, having internal protocols governing relations with the administration and a compliance programme regulating such contacts strengthens the lawfulness of its conduct and makes it easier to prove.

Lawful advocacy / lobbying	Influence peddling
Presenting technical or legal arguments	Pressure backed by a personal or hierarchical relationship
Purely institutional relationship with the decision-maker	Exploitation of that relationship
Traceable and transparent contact	Informal influence aimed at an economic benefit

Common Settings and Investigation

Influence peddling frequently surfaces in public procurement (contacts to favour a company in a tender), town planning (rezoning or licences), staff selection processes and the award of subsidies. Proving it is especially complex, because the influence is usually exerted in private conversations without witnesses.

The main forms of evidence are intercepted communications (emails, messaging, calls), the testimony of the officials who were pressured, the analysis of the personal relationship between the person influencing and the person deciding, and the timing correlation between the approaches and the favourable resolution. The validity of that evidence —especially where obtained through interference with fundamental rights— is one of the areas where much of the defence is fought.

Lines of Defence

The defence of a person under investigation for influence peddling is built on several pillars, which should be assessed from the outset of the proceedings:

1. Absence of exploitation. Proving that the personal, hierarchical or office-based relationship was not used as a means of pressure, but that the contact was an ordinary administrative dealing.
2. Legitimacy of the lobbying. Showing that the conduct consisted of presenting technical or legal arguments and was channelled through proper, transparent routes, as part of the legitimate exercise of advocacy.
3. Lawfulness of the resolution. Proving that the resolution obtained was lawful and would have been issued in any event, so that the alleged influence did not alter the sense of the decision.
4. No aim of economic benefit. Disputing that the dealing was directed at a resolution with the economic significance the offence requires.
5. Evidence and fundamental rights. Examining the lawfulness and sufficiency of the prosecution evidence, especially intercepted communications, and removing any breach of rights in the investigation.

In the corporate context, the existence of a compliance programme governing relations with the administration and prohibiting informal contacts with public decision-makers is an increasingly relevant factor. The settled case law of the Supreme Court requires proof of all the elements of the offence —and, in particular, of the exploitation of the relationship— which leaves a technical margin for defence that should be worked on rigorously.