Malfeasance vs Influence Peddling: Differences and the Extraneus

Malfeasance and influence peddling turn up in the same files — a licence, a public contract, a subsidy — and prosecutors routinely charge them together or in the alternative. They punish different conduct, they reach different people, and their penalties are nothing alike. As criminal defence lawyers specialising in offences against the public administration in Spain, we set out how the two are told apart and, above all, the question that decides a non-official client's exposure: the liability of the extraneus. This article deals solely with administrative malfeasance under art. 404 CP.

What each offence actually punishes

Art. 404 CP punishes the authority or public official who, knowing it to be unjust, issues an arbitrary decision in an administrative matter. The reproach attaches to the act of deciding: the wrong lies in exercising decision-making power crookedly. We cover the offence, its elements and the omission variant in our article on article 404 CP and administrative malfeasance.

Arts. 428 to 430 CP punish something earlier and external to the decision: influencing the decision-maker by taking advantage of the powers of one's office or of any situation arising from a personal or hierarchical relationship, in order to obtain a decision capable of generating, directly or indirectly, an economic benefit for oneself or a third party. The reproach attaches to the pressure placed on the decision-maker, not to the decision itself. We examine the three forms, and the line with bribery and lawful lobbying, in our article on influence peddling (arts. 428 to 430 CP).

Hence the first practical consequence, worth fixing before going further: the malfeasant is the one who signs; the influence peddler is the one who pushes. They may be the same person at two successive moments, but they are not the same conduct and they are not proved with the same material.

The differences at a glance

Criterion	Administrative malfeasance (art. 404 CP)	Influence peddling (arts. 428-430 CP)
Who can be a principal	Only an authority or public official: a special offence	Art. 428: an official or authority. Art. 429: a private individual. Art. 430: anyone
Conduct	Issuing an arbitrary decision knowing it to be unjust	Influencing by exploiting the office or a personal or hierarchical relationship
Must a decision be issued?	Yes: the decision is the object of the offence	No: the decision is the aim pursued, not a required result
Economic benefit	Not an element of the offence	Yes: the decision sought must be capable of generating one, directly or indirectly
When it is complete	When the arbitrary decision is issued	When the influence is exerted (art. 430 CP: when the payment is asked for or accepted)
Penalties	Special disqualification from public employment or office and from standing for election, 9 to 15 years. No prison sentence	Art. 428: 6 months to 2 years' imprisonment, a fine of one to two times the benefit, and disqualification of 5 to 9 years. Art. 429: 6 months to 2 years' imprisonment, the same fine, and a ban on public-sector contracting and on obtaining subsidies and tax and social-security benefits, 6 to 10 years. Art. 430: 6 months to 1 year's imprisonment
Aggravation on result	Not provided for	Yes: if the benefit sought is obtained, penalties are imposed in their upper half (arts. 428 and 429 CP)
Position of a private individual	Cannot be a principal: only instigator or necessary cooperator, with the discretionary reduction of art. 65.3 CP	Has an offence of their own: art. 429 CP, plus the offering in art. 430 CP
Corporate liability	Not provided for in art. 404 CP	Yes: art. 430 CP provides for it under art. 31 bis CP, with a fine of 6 months to 2 years

The extraneus: where the two offences part company

An extraneus is a participant who lacks the personal status the offence requires of its principal — here, someone who is neither an authority nor a public official. That status is not assumed: art. 431 CP refers, for the purposes of the chapter, to arts. 24 and 427 CP, and art. 24.2 CP treats as a public official anyone who, by direct operation of law, by election or by appointment of a competent authority, takes part in the exercise of public functions. It is in the position of this participant that the two offences diverge completely.

In malfeasance: a participant, with a discretionary reduction

Art. 404 CP is a special offence: only a person with the competence to decide can issue an administrative decision at all. A businessperson, an adviser or an intermediary cannot be a principal in malfeasance. Their exposure runs instead through the forms of participation in art. 28 CP: the instigator, who directly induces another to commit the act, and the necessary cooperator, who contributes an act without which the offence would not have been carried out. Both are treated as principals for sentencing purposes.

The corrective sits in art. 65.3 CP: where the instigator or the necessary cooperator does not possess the conditions, qualities or personal relationships on which the principal's culpability rests, the courts may impose the penalty one degree lower. Two points decide cases. First, the reduction is discretionary, not automatic: it has to be asked for and argued, and an unreasoned refusal is appealable. Second, it reaches only instigators and necessary cooperators, not accessories, who already have the mandatory one-degree reduction of art. 63 CP.

The practical effect is concrete. Against the 9-to-15-year disqualification of art. 404 CP, a reduction by one degree is the difference between a sentence that shuts a client out of the public sector for well over a decade and a materially shorter one. Raising it expressly in the defence pleadings, and in the alternative at closing submissions, is a technical requirement rather than a stylistic flourish.

In influence peddling: an offence of their own

Here the legislator had no need for art. 65.3 CP, because it built a dedicated offence for the non-official. Art. 429 CP punishes the private individual who influences a public official or authority by exploiting any situation arising from their personal relationship with that official or with another official or authority, in order to obtain a decision capable of generating, directly or indirectly, an economic benefit for themselves or a third party. The penalties are six months to two years' imprisonment, a fine of one to two times the benefit sought or obtained and, in place of the disqualification imposed on officials, a ban on contracting with the public sector together with the loss of any possibility of obtaining public subsidies or aid and of enjoying tax and social-security benefits or incentives, for six to ten years. If the benefit sought is obtained, these penalties are imposed in their upper half.

Art. 430 CP closes the picture: it punishes anyone who, offering to carry out the conduct described in the two preceding articles, asks third parties for gifts, presents or any other payment, or accepts an offer or promise, with six months to one year's imprisonment. There is no need to be an official, nor to hold any real influence: putting it up for sale is enough. Where the offence is committed by an authority or public official, special disqualification from public office and from standing for election of one to four years is added. And where a legal person is liable under art. 31 bis CP, a fine of six months to two years applies, with the courts also able to impose, under the rules in art. 66 bis CP, the penalties in letters b) to g) of art. 33.7 CP.

The upshot is counterintuitive and worth explaining to a client at the first meeting. The private individual who applies pressure answers for an offence of their own, carrying a prison sentence. The private individual who pushes an official into signing an arbitrary decision answers as a participant in someone else's offence, with no prison sentence — because art. 404 CP provides none — but with a long-reaching disqualification. Which position is worse depends entirely on what the client does for a living: for a business that lives on public contracts, the art. 429 CP contracting ban can bite harder than a few suspended months.

Completion and limitation periods

When an offence is complete determines when the limitation period starts to run. Malfeasance is complete when the arbitrary decision is issued: without a decision there is no art. 404 CP, and it must be a genuine decision — an act with decision-making content, not a report or a procedural step. Influence peddling is complete once the influence is exerted by exploiting the relationship; whether the decision is ultimately issued does not affect completion, but triggers the upper-half penalties if the benefit is obtained. Art. 430 CP moves the line even further forward: it is complete when the payment is asked for or accepted, even if no influence is ever exerted.

On limitation, art. 131 CP looks to the maximum penalty attached to the offence and, where the penalty is composite, to whichever element requires the longest period (art. 131.2 CP). Malfeasance under art. 404 CP, carrying disqualification of up to 15 years — that is, disqualification for more than ten years — becomes time-barred after 15 years. Art. 428 CP, whose disqualification reaches nine years — more than five and not exceeding ten — becomes time-barred after 10 years, a longer period than its two-year prison penalty alone would produce. Under art. 429 CP the calculation is more debatable, because its accompanying penalty is not labelled disqualification but a contracting ban and loss of benefits: how that penalty is classified for art. 131 CP purposes is a point worth raising expressly where the age of the facts makes it matter.

Where the two overlap most: art. 320 CP

A large share of the cases charging both offences are town-planning cases, and there art. 404 CP is usually displaced by art. 320 CP. Its first paragraph punishes the authority or public official who, knowing it to be unjust, has reported favourably on planning instruments, urbanisation, parcelling, re-parcelling, construction or building projects, or on the granting of licences contrary to the town-planning rules in force; or who, in the course of inspections, has kept silent about a breach of those rules; or who has failed to carry out mandatory inspections. Its second paragraph imposes the same penalties on anyone who, alone or as a member of a collegiate body, has decided or voted in favour of those approvals or licences knowing them to be unjust.

The difference in punishment is substantial: art. 320 CP imposes the art. 404 CP penalty and, in addition, imprisonment of one year and six months to four years and a fine of twelve to twenty-four months. In the planning field, in other words, malfeasance does carry prison. For an extraneus — a developer, a drafting technician, an intermediary — that changes the picture entirely: participation in an art. 320 CP offence can carry a custodial sentence, and the discretionary reduction in art. 65.3 CP becomes the central defence issue. Note too that art. 320.1 CP reaches whoever reports, not only whoever decides, so the circle of potential principals is wider than under art. 404 CP.

Concurrence and stacked charges

The fact that both offences appear in one file does not license adding them together without analysis. Three scenarios account for most of the argument:

• Influence that never crystallises. Pressure by exploitation of a relationship is proved, but no decision is ever issued, or the decision issued is lawful. Influence peddling is complete and there is no malfeasance: the arbitrary decision, which is the very object of art. 404 CP, is missing.
• An arbitrary decision with no outside influence. The official decides crookedly for reasons of their own. There is an art. 404 CP offence — or art. 320 CP in planning matters — and no arts. 428 to 430 CP offence: there is no third party influencing, and no exploitation of a relationship with a separate decision-maker.
• Influence followed by an arbitrary decision. This is the scenario that produces the double charge. The question is whether there are two autonomous acts — real concurrence — or whether the influence was the necessary means of committing the malfeasance — medial concurrence — because the sentencing rule differs. It should be argued at the intermediate stage, not left to trial.

A fourth strand is bribery under arts. 419 et seq. CP: if, alongside the personal relationship, a payment reaches the decision-maker, the basis of the charge changes and the characterisation must be precise, since the penalty regimes are not equivalent. And where what is in issue is an appointment made without the legal requirements, the Code has its own answer in arts. 405 and 406 CP: a fine of three to eight months and suspension from public employment or office of one to three years for the authority or official who, acting within their competence and knowing it to be unlawful, proposes, appoints or installs someone; and the same fine for the person who accepts the proposal, appointment or installation knowing they lack the legally required qualifications. It is a further illustration of the drafting technique: when the legislator wants to punish the non-official, it builds them an offence of their own rather than leaving them to the law of participation.

Practical criteria for telling them apart

1. Identify the act. Is there a decision — an act with decision-making content — or only a report, a proposal or a piece of lobbying? Without a decision there is no art. 404 CP, although a favourable report can suffice under art. 320.1 CP in planning matters.
2. Separate illegality from arbitrariness. An act that the administrative courts may annul is not for that reason a crime. Art. 404 CP requires a gross illegality that no reasonable interpretation of the law can explain.
3. Prove exploitation, not contact. Knowing an official, or approaching the administration with technical or legal arguments, is lawful. Arts. 428 and 429 CP require that the relationship be used as a lever of pressure on the person deciding.
4. Check the official status. Art. 431 CP refers to arts. 24 and 427 CP. In instrumental entities, publicly owned companies or delegated management arrangements that status cannot be assumed, and its absence can dismantle the charge at its base.
5. Pin down the private individual's position. Principal under art. 429 CP, participant in an art. 404 CP offence, or simply the beneficiary of a decision they did not bring about? Three positions with radically different consequences, which should not be blurred in the pleadings.
6. Invoke art. 65.3 CP. Where the client is an extraneus instigator or necessary cooperator, ask expressly for the penalty one degree lower, arguing the lesser culpability of someone not bound by the duties of public office.