Offences against Union Freedom and the Right to Strike in Spain: Art. 315 CP

These cases reach the investigating court from two opposite directions: some begin with a union complaint against an employer's decision, others with a police report drawn up during a day of strike action. In both, the argument ends at the same point: Art. 315 of the Spanish Criminal Code (CP) does not punish harm to the right, but harm to the right by particular means. As criminal defence lawyers in union freedom and right to strike cases, we set out the provision as it now stands, its two fronts, the boundaries with neighbouring offences and the lines of defence available.

You have been reported under Art. 315 CP: what it means and what happens next

These cases enter the investigating court through two different doors and with very different suspects. Through one comes the employer or manager said to have prevented or limited the exercise of union freedom or the right to strike; through the other, the person identified by the police during a picket. Which subsection the proceedings are opened under — Art. 315.1 CP or Art. 315.2 CP — is not a nuance of characterisation: it fixes the sentencing range and conditions suspension of the sentence, the evidence and even the scope for redirecting the case to another offence.

The point that sustains the defence on both fronts is the same: Art. 315 CP does not punish harm to the right, but harm to the right by particular means. Without deceit or abuse of a situation of need in subsection 1, and without coercion in the criminal sense in subsection 2, there is no offence however serious the industrial dispute. And the standard of the employment claim must not be imported: in fundamental-rights protection proceedings, once the claimant puts forward a prima facie case, it is for the employer to justify the measure; in criminal proceedings the burden falls entirely on the prosecution and the presumption of innocence applies. Both subsections become time-barred after five years.

What to do (and what not to do) before making a statement

• Fix the date of everything that predates the dispute. Reports on organisational needs, selection criteria applied to non-union members as well, and restructuring timetables drawn up before the union activity or the stoppage: it is their certain date that makes them useful as an objective employment-law reason.
• Ask at once for the recordings and the identification of those involved. In picket cases everything turns on individualising conduct — Arts. 28 and 29 CP require a specific contribution to the act — and security recordings are overwritten within days.
• Keep the Inspectorate's report and know exactly what it is worth. Its presumption of accuracy operates in administrative and employment proceedings as to facts directly verified by the officer, and does not carry across as such into criminal proceedings; characterising conduct as deceit or abuse of a situation of need is for the court, not the inspector.
• Document the legal advice or the minimum-service decision that was followed. It is the basis for the mistake defence under Art. 14 CP and must be produced from the outset, not held back for trial.
• Do not circulate statements or internal notes about the facts. What is asserted in a union statement, in a circular to staff or in the protection claim ends up being read in the criminal court.
• Do not respond to the Inspectorate or to the employment proceedings without coordinating with the criminal defence, and do not make a statement without having examined the case file. Art. 118.1 LECrim gives you the right to examine the proceedings before your statement and to remain silent; Art. 775 LECrim, a private conference with your lawyer.

Art. 315 CP as Written: Two Subsections and Two Oddities

The provision sits in Title XV of the Criminal Code, devoted to offences against workers' rights, and protects two fundamental rights: union freedom under Art. 28.1 of the Spanish Constitution and the right to strike under Art. 28.2.

Art. 315.1 CP provides that anyone who, through deceit or abuse of a situation of need, prevents or limits the exercise of union freedom or the right to strike shall be punished with six months to two years in prison or a fine of six to twelve months. Art. 315.2 CP adds that where the conduct described in the preceding subsection is carried out with coercion, it shall be punished with imprisonment of one year and nine months up to three years or a fine of eighteen to twenty-four months. A third subsection, which separately punished coercing others into starting or continuing a strike, was repealed by Organic Law 5/2021; its effects are analysed in our article on the repeal of Art. 315.3 CP.

Two oddities emerge from that wording, and both matter in practice. The first is the alternative fine in both subsections, unusual in this Title: whereas Art. 311 CP and Art. 316 CP impose imprisonment and a fine cumulatively, here a purely financial penalty is available, imposed on the day-fine system of Art. 50 CP. The second is the lower limit of subsection 2, one year and nine months, a figure that does not appear by chance: the penalty for coercion under Art. 172.1 CP is six months to three years in prison or a fine of twelve to twenty-four months, and its upper half is, precisely, one year and nine months to three years or a fine of eighteen to twenty-four months. The two frameworks match to the month, a correspondence that will matter below. Under Art. 33.3(a) CP, both subsections are less serious offences.

Deceit and Abuse of Need: the Filter between Labour Law and Criminal Law

Where none of the three means contemplated by the provision is present, conduct may be seriously anti-union and still fall outside the Criminal Code. Deceit requires a contrivance designed to create in the recipient a false picture of reality that shapes their conduct: announcing that the strike has been called off or declared unlawful when it has not, presenting as compulsory minimum services levels that have never been set as such, or leading a worker to believe that joining the action will be recorded somewhere management can consult. What is required is a positive act of concealment or falsification, not the mere failure to volunteer information nobody was obliged to give.

Abuse of a situation of need has two components and is often handled as though it had one. It requires that the situation of need already exist — a chain of fixed-term contracts, dependence on renewal, financial precariousness, irregular immigration status — and that the perpetrator consciously instrumentalise it in order to override the other person's will. The structural asymmetry inherent in any employment relationship is not enough: if mere subordination satisfied the provision, any adverse decision affecting a vulnerable worker would be criminal and the requirement would be hollow.

To the means is added a requirement of substance — the operative verb is to prevent or limit, which calls for a meaningful interference rather than the friction that abounds in collective disputes — and intent, with no negligent variant provided for. Where the means is missing the legal response does not vanish, it moves: nullity, compensation, administrative penalties and protection before the social jurisdiction, within the framework drawn by Organic Law 11/1985 on Trade Union Freedom and the Workers' Statute. The wider picture is covered in our guide to offences against workers' rights.

The Employer Front and the Boundaries with Arts. 314 and 311 CP

The conduct that reaches the courts from the employer side is almost always of five kinds: reprisals for union membership or for standing in workplace elections; discrimination against a representative through transfers or the hollowing out of duties; obstruction of union activity, by refusing paid time off, premises or access to information; pressure to call off industrial action; and the irregular replacement of strikers.

None of these is automatically criminal: all are, in the first place, labour law breaches with their own regime of nullity, compensation and administrative sanction, and they cross into the Criminal Code only where one of the stated means is present. Transferring a union representative is criminally relevant if it was engineered through deceit or by exploiting a situation of need, not simply because it was a reprisal.

The boundary with Art. 314 CP has to be drawn because the two overlap. That provision punishes those who cause serious discrimination in employment, public or private, on the grounds it lists — expressly including holding legal or union office as a workers' representative — and who do not restore equality before the law after an administrative demand or penalty, with six months to two years in prison or a fine of twelve to twenty-four months. Its distinctive feature is that unheeded prior demand: discriminating is not enough, the discrimination must persist despite the warning. Art. 315 CP requires nothing of the kind, but in exchange it demands deceit, abuse of need or coercion. That offence is analysed in our article on the offence of workplace discrimination under Art. 314 CP.

The boundary with Art. 311 CP weighs even more heavily because of the difference in penalty. Its first paragraph uses the same formula of deceit or abuse of a situation of need, but to punish those who impose employment or social security conditions that harm, remove or restrict the rights recognised by statute, collective agreement or individual contract, with six months to six years in prison and a fine of six to twelve months, cumulatively. The test is what has been harmed: the terms of the individual employment relationship lead to Art. 311 CP; the exercise of the collective right leads to Art. 315 CP.

Collective Action: Pickets, Art. 172 CP and the Constitutional Limit

Art. 315 CP does not protect only the worker against the employer: its wording is neutral and reaches anyone who prevents or limits these rights, whoever they are. The starting point is constitutional. The right to strike is a fundamental right under Art. 28.2 of the Constitution, and its exercise — regulated by Royal Decree-Law 17/1977 on labour relations — covers informing, spreading the message and persuading, the informational picket, which is also protected by freedom of expression. The boundary of that protected sphere lies not in the context or the force of the message but in violence, intimidation or any other form of compulsion over another person's will: informing, persuading and even causing inconvenience belong to the right; replacing the addressee's free decision with one's own does not.

Against that background, Organic Law 5/2021 left a map that is often summarised badly. Coercing someone into starting or continuing a strike no longer has an aggravated provision of its own: with the former subsection 3 repealed, that conduct falls back on the coercion offence of Art. 172 CP, which punishes anyone who, without lawful authority, prevents another by force from doing what the law does not forbid, or compels them to do what they do not wish to do, whether right or wrong, with six months to three years in prison or a fine of twelve to twenty-four months, according to the seriousness of the coercion or of the means used. That same provision requires the penalties to be imposed in their upper half where the coercion was aimed at preventing the exercise of a fundamental right, unless the act carries a heavier penalty under another provision of the Code.

The fine point lies in the direction of the conduct. Where what is coerced is joining the action — compelling someone to support the strike — the natural fit is Art. 172 CP. Where what is coerced is precisely preventing or limiting the exercise of the right — pressing someone who wants to join the strike, or who wants to join a union, into giving up — the conduct answers the description in Art. 315.2 CP, a special provision that takes precedence over the general one under Art. 8.1 CP. Here the numerical correspondence noted earlier returns: the framework of Art. 315.2 CP and the upper half of Art. 172.1 CP are identical, so the argument does not change the sentence, though it does change the offence of conviction. The general regime is examined in our legal guide to the offence of coercion.

Who Answers within the Company: Art. 318 CP

Where the facts arise inside an organisation, liability is not allocated by the general rules but by a provision specific to Title XV. Art. 318 CP states that where the acts covered by the articles of that Title are attributed to legal persons, the penalty laid down shall be imposed on the directors or managers responsible for them and on those who, knowing of them and being able to remedy them, took no measures to do so, adding that the court may also order some of the measures provided for in Art. 129 CP.

These are two distinct rules. The first transfers the penalty to whoever actually took the decision, whether a director or a manager, a category that reaches middle management with real decision-making power and does not track the formal organisation chart. The second is an omission-based liability clause requiring proof of two cumulative elements, actual knowledge and a real capacity to remedy, with hierarchical position alone not sufficing. Much of the defence of non-executive directors and senior managers is played out on those two points.

The most significant systemic consequence tends to surprise: the offences of Title XV do not appear in the catalogue that allows criminal liability to be imposed on a legal person under Art. 31 bis CP. The company is not charged as such, and the compliance-programme defence is unavailable because there is no corporate liability to be exempted from. What can fall on the entity are the ancillary consequences of Art. 129 CP, whose subsection 2 requires express provision in the Code, supplied here by Art. 318 CP itself: their content is that of paragraphs (c) to (g) of Art. 33.7 CP, from suspension of activities or closure of premises to disqualification from contracting with the public sector. A compliance programme, though it cannot exonerate the company, is still what allows a particular manager to show that measures were in fact taken.

Penalties, Limitation and Suspension of Sentence

In both subsections the alternative fine governs the sentencing discussion, alongside the civil liability of Art. 109 CP: lost pay, or non-pecuniary damage flowing from the interference with the fundamental right.

The limitation period is resolved by Art. 131 CP, and it is worth doing so with the text to hand. Art. 131.1 CP sets a ten-year period where the maximum penalty laid down by law is imprisonment or disqualification of more than five years and not exceeding ten, and five years for all other offences. The maximum custodial term under Art. 315.1 CP is two years and under Art. 315.2 CP three: neither exceeds five years and both are time-barred after five. Nor does Art. 131.2 CP change the outcome, under which the longest-running penalty governs where the penalty is composite: here the penalties are alternative, and neither the custodial term nor the fine shifts the period. Art. 311 CP, by contrast, with imprisonment of up to six years, is time-barred after ten. Time runs under Art. 132.1 CP from the day the offence was committed and, in continuing offences, from the point at which the unlawful situation ceased.

The suspension of sentence calls for a clarification that is often misread. Art. 80.1 CP allows the enforcement of custodial sentences of no more than two years to be suspended, and its subsection 2.2 requires that the sentence or the sum of those imposed does not exceed two years: what counts is the sentence actually imposed, not the one laid down in the abstract. The custodial term under Art. 315.1 CP always falls within that scope; the one under Art. 315.2 CP only if the sentence imposed does not exceed two years, which remains possible because the framework starts at one year and nine months. There is therefore a genuine sentencing band in which suspension is at stake, alongside the conditions of being a first-time offender and of having met the civil liabilities.

Evidence and the Course of Proceedings

These cases arrive by three routes: the union complaint or private prosecution, which usually comes with a narrative already framed in labour law terms; the police report drawn up during a day of strike action, valuable for its immediacy and fragile because of the difficulty of individualising conduct within a group; and action by the Labour and Social Security Inspectorate. The inspection report is the item whose weight is most overestimated: the presumption of accuracy attaching to it operates in the administrative and labour spheres as to facts directly observed by the inspector, but it does not carry over as such into criminal proceedings, where the free assessment of evidence and the presumption of innocence apply. It keeps its force as to objective verified data and loses it as to legal assessments, because characterising conduct as deceit or as abuse of a situation of need is for the court and not for the inspector, who will normally give evidence as a witness. Dealings with the inspection itself may also give rise to separate liability, as explained in our article on obstruction of the Labour Inspectorate.

Coordination with fundamental rights protection proceedings before the social jurisdiction raises the most delicate problem, because of the difference in evidential rules. In the labour process, once the claimant has produced prima facie evidence of interference with the fundamental right, it falls to the employer to justify the measure objectively and reasonably. That rule does not operate in criminal proceedings: here the burden rests entirely on the prosecution, which must establish every element of the offence, the means included, and an employer's failure to justify itself cannot be turned into evidence of guilt. Confusing the two standards is a frequent flaw in indictments built on an earlier labour claim. Added to this is the precedence of the criminal jurisdiction, which may lead to the labour proceedings being stayed while the criminal case is decided on the same facts. Hence the closing warning: what is asserted in the labour claim, in submissions to the Inspectorate or in a union statement ends up being read in the criminal court.

Lines of Defence

The first line, and the one that disposes of most cases, is the absence of the required means: showing that there was no deceit — no false statement, no material concealment — and no abuse of a situation of need, breaking the latter into its two components, namely that no qualified need existed beyond the asymmetry inherent in any employment relationship, or that, existing, it was not instrumentalised. Against subsection 2, the equivalent task is to deny that there was coercion in the criminal sense rather than mere insistence.

The second is the objective, documented business reason where what is challenged is an employer's decision: organisational needs reports, selection criteria applied equally to non-unionised staff and restructuring timetables predating the union activity or the dispute. The third, on the collective action front, is the informational character of the picket and the absence of compulsion, together with the individualisation of conduct: Arts. 28 and 29 CP require a concrete contribution to the act, and nobody answers for having been present in a group or for belonging to the organisation that called the action, which makes blanket accusations based on a police identification particularly vulnerable.

The fourth is mistake under Art. 14 CP: an unavoidable mistake as to a fact constituting the offence excludes criminal liability (Art. 14.1 CP), and an unavoidable mistake as to unlawfulness excludes it too (Art. 14.3 CP), with the penalty reduced by one or two degrees where the mistake was avoidable; anyone acting on a legal opinion or on an administrative decision about minimum services has an argument here that should be documented from the outset. To these are added minimum intervention, the alternative characterisation — reducing subsection 2 to subsection 1 for want of coercion, or moving the conduct to Art. 172 CP where what was coerced was joining the action — and the limitation period under Arts. 131 and 132 CP, which in cases built on old disputes may dispose of the proceedings before any argument on the merits.