SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
When a Company May Be Held Criminally Liable Under Article 31.bis of the Criminal Code, a company may be held criminally liable for offences committed: • in the company’s name and for its direct or indirect benefit, by its legal representatives or by those with organisational or control powers; and • by employees, where those responsible for super - vision and control have seriously failed in their duties. A company’s criminal liability is based on its own organisational failings. Liability may be imposed even if the individual wrongdoer has not been identified, has died or is otherwise exempt from prosecution. For this reason, the prevailing legal view is that shell or nominee companies cannot be prosecuted. Companies may only be prosecuted for offences expressly designated by the Criminal Code as appli - cable to legal persons. Liability Within Corporate Groups Criminal liability applies individually to each company. A parent company is not liable for the offences of its subsidiaries unless three conditions are met: • an individual acting on behalf of the parent com - pany was involved in the conduct; • the offence was committed on behalf of and for the benefit of the parent; and • the parent company has its own organisational failings. In practice, the less autonomy a subsidiary has, the greater the risk that liability will extend to the parent company. Corporate Restructuring and Extinction of Liability A merger, acquisition, de-merger or other corporate restructuring does not extinguish criminal liability. The liability passes to the resulting entity. Liability is also not extinguished by a sham dissolution in which the business continues with substantially the same cli - ents, suppliers and employees.
Offences attributed to the National Court or whose jurisdiction has been assumed by the European Pub - lic Prosecutor’s Office are excluded, subsequently removing the most complex and transnational finan - cial crime cases from jury trial. Where jury-eligible offences (such as bribery) coin - cide with non-jury offences (such as money launder - ing), the jury may hear the connected offences if the connection arises from their simultaneous commis - sion, prior agreement or an instrumental relationship between them. The jury is also competent where a single act constitutes two or more offences, provided at least one falls within its catalogue. However, the connected offences that can be severed without breaking the unity of the case are excluded from the Jury Tribunal. In practice, this separability means that financial offences connected to bribery or embezzlement are often tried by professional judges. Defendants cannot choose the trial body or procedure (see 4.4 Venue and Specialisation ). Selection of Jurors The Jury comprises nine full members and two alter - nates, selected by lot from the electoral roll among residents of the province where the offence was com - mitted. Each party may challenge up to four candi - dates without giving a reason and an unlimited num - ber with cause shown. Prospects for Reform No proposals currently exist to extend or restrict jury jurisdiction over financial offences. 5. Corporate Liability, Compliance and Defences 5.1 Corporate and Individual Liability Simultaneous Prosecution of Companies and Individuals Companies and individuals may be prosecuted at the same time for the same conduct. Each should have separate legal representation to avoid conflicts of interest.
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