Criminal Lawyers in Business Corruption Defence

Business corruption (Art. 286 bis CP), introduced by Organic Law 5/2010 and reformed by Organic Law 1/2015, sanctions private corruption as the private equivalent of public bribery: it punishes those who promise, offer or grant —and those who receive, request or accept— an undue benefit or advantage to wrongly favour one party in the contracting of goods or services. The protected legal interests are fair market competition and the integrity of commercial traffic, since private corruption distorts efficient resource allocation and harms honest competitors. Since LO 1/2015 the offence no longer requires the recipient to breach their obligations: it is enough that the unjustified benefit is the consideration for improperly favouring another.

The commission modalities diversify according to sector and role. Active corruption reaches the director or businessperson offering or paying bribes to obtain contracts, awards or preferential treatment; passive corruption reaches the director, employee or collaborator who solicits or accepts the benefit. Conduct may consist of direct payments, luxury gifts, trips, undisclosed bonuses, fictitious consulting contracts, commissions to intermediary companies or promises of future employment ("revolving door"). Art. 286 bis 4 CP specifically typifies sports corruption: match-fixing in professional competitions, pre-arranged results, betting market manipulation or bribes to referees, players and executives. Recent high-profile cases demonstrate the severe prosecution of these facts by the Anti-Corruption Prosecutor's Office and the sports disciplinary regime.

The statutory penalties are severe and cumulative. For natural persons, imprisonment from six months to four years, special disqualification from exercising industry or commerce for one to six years, and a fine of one to three times the value of the benefit or advantage. The legal entity responds autonomously (Art. 288 CP) with fines that can reach five times the benefit obtained, prohibition from contracting with the public sector, judicial intervention and even dissolution in serious cases. In sports, federation sanctions and devastating media consequences are added. The Public Sector Contracts Act 9/2017 establishes a contracting prohibition for companies convicted of business corruption (Art. 71.1.a), with the scope and duration set by the judgment or, failing that, by an administrative procedure (Art. 72), which in many sectors amounts to operational shutdown.

The technical defence in private corruption rests on four axes. First, typicality of the benefit: not every gift, courtesy or commission is a bribe; reasonable professional invitations, sector "social customs" and brokerage commissions with lawful cause escape criminal typification, in line with the jurisprudential distinction between social usage and undue benefit. Second, absence of causal nexus: it must be proven that the benefit was offered or accepted as consideration for improperly favouring another (the offence is complete with the offer, promise or acceptance, even if no favour is ultimately granted); an award justified by objective criteria (price, quality, deadlines, technical solvency) is strong evidence against that link. Third, effectiveness of the criminal compliance model under Art. 31 bis CP and UNE 19601 standard: a robust program with operational ethics channel, third-party due diligence and specific anti-fraud training can exempt the legal entity if it was adopted and effectively implemented before the offence and meets the requirements of Art. 31 bis (partial compliance mitigates). Fourth, nullity of evidence derived from non-protective internal audits or anonymous complaints (whistleblowing) breaching Act 2/2023 guarantees on whistleblower protection.

In current forensic practice we see a significant increase in private corruption proceedings linked to high-competition sectors (pharmaceutical, construction, retail, energy, sports). The transposition of Directive 2017/1371 on the protection of EU financial interests, Act 2/2023 on whistleblower protection, Organic Law 1/2025 on Justice Service Efficiency and recent Supreme Court doctrine on corporate criminal liability have expanded the prosecutorial arsenal and demand specialized defence. At Alonso Sala, with more than 15 years of experience in economic criminal law, we intervene both in defence of natural persons (directors, commercials, intermediary agents) and legal entities, combining legal analysis, forensic accounting, retrospective due diligence and, where appropriate, confidential internal investigations aimed at containing reputational damage and strengthening the negotiating position before the Prosecutor's Office.