Organic Law 14/2022: Reformed Economic Crimes in Spain

Organic Law 14/2022, of 22 December, was one of the most relevant reforms of the Criminal Code in economic matters since 2015: it reformed fraud (Arts. 248 and 249) to transpose Directive (EU) 2019/713 on fraud involving non-cash means of payment, reformed embezzlement (Arts. 432 to 434), introduced the leniency exemption (Arts. 262.3 and 288 bis) and created the offence of illicit enrichment (Art. 438 bis). It did not, however, amend private corruption, international corruption or the corporate offences, although it is often credited with doing so. As economic crime lawyers, we explain the reform and its impact on corporate compliance.

Private Corruption: Art. 286 bis CP, Unchanged

Article 286 bis CP punishes offering, promising, granting, receiving or soliciting an undue benefit or advantage within commercial or professional relationships so that the recipient favours the corrupter. Organic Law 14/2022 did not amend it, and its penalties have been the same since Organic Law 5/2010: prison of 6 months to 4 years, special disqualification from exercising industry or commerce of 1 to 6 years, and a fine of one to three times the value of the benefit. Under Art. 286 quater CP, the penalty is imposed in its upper half, and may reach the next higher degree, where the facts are especially serious: a benefit of especially high value, conduct that is not merely occasional, an organisation or criminal group, or humanitarian or other essential goods or services.

Corruption in International Transactions: Art. 286 ter CP

Article 286 ter CP punishes the corruption of foreign authorities or officials in international economic transactions. Public officials include those of the European Union and of public international organisations (Arts. 24 and 427 CP). The provision dates from Organic Law 1/2015 and Organic Law 14/2022 did not amend it. The penalties are prison of 3 to 6 years, a fine of 12 to 24 months (one to three times the benefit if that is higher) and, in every case, a prohibition on contracting with the public sector, loss of subsidies and of tax and social security benefits, and a ban on taking part in commercial transactions of public importance for 7 to 12 years.

Corporate Offences: Arts. 290-297 CP

• Art. 290 CP - Falsification of annual accounts: falsifying the annual accounts or other documents that must reflect the legal or economic position of the entity, in a manner apt to harm the company, any shareholder or a third party. Penalties: 1 to 3 years in prison and a fine of 6 to 12 months.
• Art. 291 CP - Imposition of abusive resolutions: a majority imposing abusive resolutions harming minority shareholders.
• Art. 292 CP - Harmful resolutions: imposing or taking advantage of harmful resolutions adopted by a fictitious majority, to the detriment of the company or any of its shareholders.
• Art. 293 CP - Obstruction of shareholder rights: denying or preventing, without legal cause, the exercise of the rights to information, participation in management or control, or pre-emptive subscription.
• Art. 294 CP - Obstruction of administrative inspection: denying or impeding the action of supervisory bodies.
• Art. 252 CP - Unfair administration: anyone with powers to administer another's assets who breaches them by exceeding their exercise, causing harm. Penalties of Art. 248 CP (6 months to 3 years in prison) or, where applicable, of Art. 250 CP (1 to 6 years, or 4 to 8).

Impact on Corporate Compliance

It is advisable to review criminal compliance programmes under Art. 31 bis CP. Organisation and management models must include specific controls on international commercial relations (gifts, commissions, sponsorships), reinforced due diligence on intermediaries and agents, whistleblower channels under Law 2/2023, approved anti-corruption policies, and a register of payments to third parties with full documentary traceability.

Defence Strategies

• Atypicality through social adequacy: distinguishing courtesy gifts or reasonable business attentions from bribery (Art. 286 bis CP requires an “unjustified” benefit or advantage).
• Absence of intent: proving ignorance of the undue nature of the benefit.
• Effectiveness of the compliance model: triggering the exemption of Art. 31 bis.2 CP by demonstrating its suitability and effective supervision.
• Limitation: checking the periods of Art. 131 CP (10 years for Art. 286 bis and at least 10 for Art. 286 ter, which would be 15 if its ban on public contracts is counted; 5 for the corporate offences of Arts. 290 to 294).
• Nullity of evidence: challenging searches, wiretaps or documentation obtained without guarantees.
• Cooperation with the prosecution: the mitigating factor of confession (Art. 21.4 CP) or repair of the harm (Art. 21.5 CP).