Crimes against the market and consumers in Spain: false advertising, price manipulation and insider trading (Arts. 282 to 285 CP)

An advertising campaign built on uncertain data, manipulated billing or the spreading of rumours to move a share price may look, from inside the company, like aggressive commercial decisions. The Spanish Criminal Code, however, places them — once they reach a certain level of seriousness — among the crimes against the market and consumers in Articles 281 to 285 CP. It is worth setting out precisely which conduct is punished, what penalties it carries and how the criminal offence is distinguished from a mere administrative breach or unfair competition. We explain this from the firm's technical standpoint, without alarmism and without promises of results.

What these offences protect

The section devoted to crimes against the market and consumers protects a threefold interest: the socio-economic order, free competition and the interests of consumers. It is not about safeguarding a specific individual's assets — fraud and unfair administration deal with that — but about preserving the proper functioning of the market as an institution and the trust that consumers and investors place in it.

This supra-individual focus explains two practical features of these offences. First, many of them are framed as offences of danger: it is enough that the conduct is capable of causing the harm, without the damage actually having to materialise. Second, they frequently coexist with parallel administrative proceedings (consumer protection, competition, securities-market supervision), so the criminal strategy cannot be designed in isolation from those other fronts.

False or misleading advertising (Art. 282 CP)

Article 282 CP is the central offence in the section as regards its direct impact on consumers. It punishes manufacturers or traders who, in the offers or advertising of products or services, make false claims or state untrue characteristics about them in a way that may cause serious and obvious harm to consumers. The penalty is six months to one year's imprisonment or a fine of twelve to twenty-four months.

The key to this offence lies in its limits. Not every optimistic advertising message is caught: the law tolerates the exaggeration inherent in advertising (so-called dolus bonus) and generic or merely evaluative statements. For there to be an offence, the following are required:

• A false claim or the statement of untrue characteristics, that is, concerning objective and verifiable data about the product or service, not opinions.
• That the information is capable of causing serious and obvious harm to consumers. The danger must be real and evident, not remote or hypothetical.
• Intent: knowledge of the falsity of what is advertised and the will to disseminate it.

The boundary with the unlawful or unfair advertising governed by administrative and commercial rules is decisive. The vast majority of advertising excesses are resolved through those channels — cessation of the advertising, consumer-protection penalties, unfair-competition claims — and only the most serious cases, genuinely capable of harming a body of consumers, attract criminal liability.

False billing through automated devices (Art. 283 CP)

Article 283 CP punishes those who, to the detriment of the consumer, bill higher amounts for products or services whose cost or price is measured by automated devices, by altering or tampering with them. The penalty is six months to one year's imprisonment and a fine of six to eighteen months.

The typical scenario is the manipulation of meters, fuel pumps, taximeters, scales or any measuring device on which billing is based, so that the consumer pays more than is actually due. The reproach centres on the tampering with the measuring instrument as a means of systematically defrauding those who purchase the product or service.

Price and market manipulation (Art. 284 CP)

Article 284 CP is, by sentencing range, the most serious offence in the section: it provides for six months to six years' imprisonment, a fine and disqualification. It groups together several forms of conduct aimed at distorting the functioning of the market:

• Altering prices through coercion or deception: using violence, threat, deception or any artifice to alter the prices that should result from the free competition of products, goods, financial instruments, services or any other movable or immovable items that are the subject of trade.
• Spreading false news or rumours: disseminating, directly or through the media, false or misleading information about persons or companies by offering wholly or partly false economic data, with the aim of altering or maintaining the listed price of a financial instrument.
• Manipulative transactions: carrying out transactions or orders that give false or misleading signals about the supply, demand or price of financial instruments, or that secure a price at an abnormal or artificial level.

This conduct connects with the administrative market-abuse regime and securities-market supervision. The boundary between the administrative and the criminal sanction again turns on the seriousness of the conduct and of the benefit obtained or the harm caused, which makes a careful technical analysis of the case essential.

Insider trading (Art. 285 CP)

Article 285 CP criminalises what is known as insider trading: the use of information relevant to the price of financial instruments to which a person has had confidential access in the course of a professional or business activity. An offence is committed by anyone who, holding such information, uses it by acquiring or transferring securities, or passes it on to third parties, thereby obtaining a benefit or avoiding a loss.

The provision reserves the criminal response for the most significant cases, having regard to the benefit obtained, the harm caused or the value of the instruments involved. Below that threshold, the misuse of inside information is dealt with through the administrative supervision of the markets. Drawing the line correctly between the criminal and the administrative sphere is, here too, a matter for the defence.

Withdrawal of essential goods (Art. 281 CP)

To complete the picture, it is worth mentioning Article 281 CP, which opens the section. It punishes the withdrawal from the market of raw materials or essential goods with the intention of creating a shortage in a sector, forcing a change in prices or causing serious harm to consumers. It is a less common offence in practice, but it neatly illustrates the logic of the whole section: protecting the market and consumers against manoeuvres that artificially distort supply or price.

Liability of the legal person (Art. 288 CP)

Article 288 CP establishes the criminal liability of the legal person for the offences in this section. The company may be sentenced to fines and, applying the rules in Article 66 bis CP, to the ancillary consequences in Article 129 CP: suspension of activities, closure of premises, prohibition of certain activities or disqualification from obtaining subsidies and contracting with the public sector.

This corporate liability gives a central role to compliance programmes. An effective prevention model — with genuine controls over advertising, billing and, where relevant, the handling of sensitive market information — not only reduces the risk of an offence being committed but can prove decisive in the company's defence if the conduct does occur. In this area, advice from lawyers who specialise in crimes against the market and consumers and can coordinate the criminal defence with the regulatory dimension of the matter is essential.

Lines of defence

There is no single defence: each case dictates its own strategy depending on the facts, the specific conduct charged and the available evidence. The most common lines, always within respect for the presumption of innocence, are:

• No offence for lack of seriousness: showing that the conduct does not cross the criminal threshold — tolerated advertising exaggeration, absence of serious and obvious harm, an irregularity proper to the administrative sphere — and therefore does not satisfy the offence.
• Truth or reasonable belief: establishing that the advertising claims were true or that there was a reasonable objective basis for making them, which bears on intent.
• Absence of intent or of a fraudulent purpose: management errors, technical failures in measuring systems or reasonable interpretations of information do not amount to a will to deceive or manipulate.
• Disputing the classification: distinguishing the applicable offence (false advertising, market manipulation, misuse of information) and ruling out improper aggravation; an incorrect classification is, in itself, ground for the defence.
• Effectiveness of the compliance programme: in the defence of the legal person, establishing the existence and genuine operation of an adequate prevention model.
• Challenging the evidence: reviewing the lawfulness and sufficiency of the economic expert evidence, the documentary record and the supervisors' reports on which the charge rests.

Specialist defence with Alonso Sala

An investigation into crimes against the market and consumers almost always combines voluminous documentation, economic expert reports and the presence of parallel administrative proceedings. At Alonso Sala, a criminal defence firm based in Madrid (calle Velázquez 27) with coverage throughout Spain, we approach this type of matter with technical rigour and discretion, studying each file individually and coordinating, where appropriate, the criminal defence with its regulatory dimension, in order to build the strategy that best fits the facts and the legal framework in force.