SPAIN Law and Practice Contributed by: Gabriel Rodríguez-Ramos, RODRIGUEZ RAMOS ABOGADOS
There is not a specific definition of corruption, but the term is used to systematically embrace bribery affecting the private sector (Article 286 bis CC) and foreign public bribery affecting public procurement (Article 286 ter CC), assuming the terminology of the Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector and of the United Nations (UN) Convention against Corruption, adopted by the UN General Assembly on 31 October 2003, by Resolution 58/4. Spanish law incriminates both public and private brib - ery and corruption conduct carried out nationally and internationally by natural and legal persons. • Bribery and corruption related to the public sector. (a) Affecting national public administration: (i) improper influence over public officials and authorities (by other public officials or authorities – Article 428 of the Spanish Criminal Code, CC – or by a non-public person – Article 429 CC); (ii) bribery of public officials and authorities to engage in improper conduct (both the public official who promotes or receives it – Article 419 CC – and the private individ - ual who promotes or pays it – Article 424 CC), to gratify proper conduct (Articles 420 and 421 CC), due to his public condi - tion (Article 422 CC); (iii) misappropriation of public funds, includ - ing the misappropriation of public assets (Article 432 CC), their use for private purposes (Article 432 bis CC) or for a purpose different from the one intended (Article 433 CC), with a new regulation which entered into force in January 2023; (iv) fraud in public procurement (Article 436 CC); and (v) actions not falling under the previous provisions, but involving unfair decisions in public functions incompatible with any admissible interpretation of the law (prison linked when considering judges resolu - tions (Article 446 CC); not prison linked but disqualification for public responsibili - ties in any other case (Article 404 CC). (b) Affecting foreign public administrations:
(i) bribery of foreign officials and authorities in economic operations (public procurement) with disruption of competition (Article 286 ter CC); and (ii) in the national sphere, against acts of brib - ery (Article 427 CC), improper influence (Article 431 CC), and misappropriation of public funds (Article 435 CC) involving officials of the European Union of any Eu - ropean Union country or any other foreign country (Article 427 CC). • Bribery and corruption related to private sec - tor scopes bribery of administrators, executives, and employees of companies (Article 286 bis CC) and of sports entities, athletes, and referees to manipulate the outcome of highly significant sports competitions (Article 286 bis CC). Movements and transformations of funds or assets can also lead to additional criminal liability through money laundering crime, if it is determined that they were intended to conceal or cover up their illicit origin or to assist the person involved in the offence in evad - ing the legal consequences of their actions (Articles 301–304 CC). 2.2 Influence-Peddling The improper influence over public officials and authorities by other public officials or authorities or non-public persons is criminalised nationally (Articles 428 and 429 CC) and internationally (foreign public officials influence-peddling, Article 477 CC). 2.3 Financial Record-Keeping The CC contains two different offences relating to inaccurate corporate books and records and/or dis - semination of false information. • Article 290 CC, which permits the imposition of up to three years of imprisonment on those who falsify the accounting or any other documents that should reflect the legal or financial situation of the entity, in a way that could cause economic harm to the company, one of its partners, or a third party. • Article 282 bis CC, which permits up to four years of imprisonment for those who issue securities traded in the securities markets, falsify the eco - nomic-financial information contained in the pro -
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