jurisdiction

Spain
Source of law Articles 419 – 422, 424, 427, 427 bis, 445 and 286 ter of the Penal Code
Offence

Bribing  

Offering or giving handouts, favours or remuneration of any kind to a public official   (for their or another’s benefit) 

  • to perform an act contrary to his duties 
  • to omit or delay performance of an act within his duties  
  • to carry out an act inherent to his duties  
  • in view of his office or duty  

Offering, promising or giving an advantage to a foreign public official  (for their or another’s benefit) to act or refrain from acting in a particular way, in order to obtain or retain business or another unfair advantage. 

Being bribed  

A public official soliciting or receiving, or accepting the offer or promise to receive, a gift or other benefit, (1) to perform an act contrary to his duties; (2) to delay or omit to perform an act within the scope of his authority; (3) to perform an act inherent to his duties; (4) as a reward for the same or (5) in view of his office or duty. 

The bribe 
Is there a presumption that the advantage was given/received corruptly? No
Would facilitation payments be caught? 
Would corporate hospitality be caught?  
Is there any de minimis? No
Does the bribe have to be monetary?No
Public officials  
Does the offence only apply to bribing public officials?Yes
Acts performed outside Spain  
Can bribery performed outside Spain be caught? Yes (If committed by a Spanish national / resident)
Does the act also need to be illegal in the foreign country of performance?Yes
Who can be liable? 
Spanish nationals?Yes
Spanish company?Yes
Spanish partnership (including limited liability partnerships) incorporated? Yes
Director of Spanish company?Yes
Spanish company if the bribe is committed abroad by its foreign subsidiary? (if certain requirements are met)
Foreign subsidiary of a Spanish company if the bribe is committed abroad?(if certain requirements are met)
Foreign national/company/partnership if bribe is committed in Spain? Yes
Foreign national domiciled or “ordinarily resident” in Spain if bribe is committed outside Spain? (If a crime of corruption between private parties or in an international financial transaction)
Foreign company/partnership if bribe is committed abroad? No
Penalties 
Penalties include:

Individuals 

  • Imprisonment of up to six years or a fine 
  • Fine up to 24 months 
  • Disqualification of the public official from public employment for up to 12 years depending on the offence 
  • If the bribe was given in relation to public tenders, private individuals face disqualification from public tenders, subsidies and aid for five to ten years. 
  • If the bribe was given in relation to international economic transactions, private individuals face debarment from public contracts, subsidies and aid, and any tax or Social Security benefits and incentives, and prohibition from taking part in commercial transactions of public relevance for up to 12 years 

Companies 

Fines of up to five times the benefit obtained.  

In addition, the Courts may also order: 

  • Dissolution 
  • Suspension of activities for up to five years 
  • Closure of premises and establishments for up to five years. 
  • Temporary or permanent prohibition on carrying out the activities through which it committed, favoured or concealed the felony; if temporary, the term may not exceed 15 years. 
  • Debarment from obtaining public contracts, subsidies and aid, and any tax or Social Security benefits and incentives, for up to 15 years. 
  • Judicial intervention to safeguard the rights of the workers or creditors for the time deemed necessary up to five years. 
Defences  
Are there any defences available?

If an individual reports the benefit required from a public authority / officer before proceedings commence and within two months of the relevant event, he shall be exempt from punishment. 

Implementing a crime prevention programme, in line with the requirements set out in the Article 31 bis of the Penal Code, may exempt or reduce the criminal liability of the legal entity.

 

Source of law Article 286 bis of the Penal Code
Offence

Bribing  

Offering, promising or giving any undue advantage to a director, manager, or employee of a company  for someone’s benefit, to unduly favour in commercial relations 

Being bribed  

Requesting, receiving or accepting such undue advantage -or the offer or promise to obtain it in the future- by such director, manager, or employee, to unduly favour someone in commercial relations.

The bribe 
Is there a presumption that the advantage was given/received corruptly? No
Would facilitation payments be caught?No
Would corporate hospitality be caught? Yes
Is there any de minimis? No
Does the bribe have to be monetary?No
Public officials  
Does the offence only apply to bribing public officials?Yes
Acts performed outside Spain  
Can bribery performed outside Spain be caught? Yes (If committed by a Spanish national / resident)
Does the act also need to be illegal in the foreign country of performance?Yes
Who can be liable? 
Spanish nationals?Yes
Spanish company?Yes
Spanish partnership (including limited liability partnerships) incorporated? Yes
Director of Spanish company?Yes
Spanish company if the bribe is committed abroad by its foreign subsidiary? Yes (if certain requirements are met)
Foreign subsidiary of a Spanish company if the bribe is committed abroad?Yes (if certain requirements are met)
Foreign national/company/partnership if bribe is committed in Spain?  
Foreign national domiciled or “ordinarily resident” in Spain if bribe is committed outside Spain? If a crime of corruption between private parties or in an international financial transaction)
Foreign company/partnership if bribe is committed abroad? No
Penalties 
Penalties include:

Individuals 

  • Imprisonment of up to four years 
  • Disqualification from engaging in trade for up to six years 
  • Fines of up to three times the value of the profit or advantage obtained

Companies 

Fine of up to five times the benefit obtained. In addition, a court may also order:

  • Dissolution 
  • Suspension of activities for up to five years 
  • Closure of premises and establishments for up to five years 
  • Temporary or permanent prohibition on carrying out the activities, through which it committed, favoured or concealed the felony; if temporary, the term may not exceed 15 years 
  • Debarment from obtaining public contracts, subsidies and aid, and any tax or Social Security benefits and incentives, for up to 15 years 
  •  Judicial intervention to safeguard the rights of the workers or creditors for the time deemed necessary for up to five years
Defences  
Are there any defences available?Yes (Implementing a crime prevention programme, in line with the requirements set out in the Article 31 bis of the Penal Code, may exempt or reduce the criminal liability of the legal entity)