SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
5.2 Compliance Programmes Implementation of Compliance Programmes Spanish law does not require companies to implement a criminal compliance programme. However, Article 31bis of the Criminal Code encourages their adop - tion. An effective programme, put in place before any offence occurs, may exempt a company from criminal liability. Exemption from Criminal Liability To qualify for an exemption, the programme must be effective and demonstrate a genuine culture of com - pliance within the organisation. An independent body, known as the compliance officer, must oversee the programme. The programme must also include: • a criminal risk assessment tailored to the com - pany’s activities; • clear decision-making procedures; • a whistleblowing channel; • a training programme; • a disciplinary system; and • processes for periodic review and updates. Mitigation of Criminal Liability Where a compliance programme does not meet all the requirements for full exemption, it may still serve to reduce the company’s criminal liability. 5.3 Defences and Exceptions Common Defences in Financial Crime Cases Beyond procedural challenges, the most common defences in financial crime cases focus on two issues: whether all elements of the offence have been met (particularly the intent element) and whether the defendant actually participated in the conduct. Intent is central because financial crime offences are generally only punishable if committed intentionally. These offences often sit at the boundary between criminal conduct and administrative violations. An error, a difference of interpretation or mere negligence may be enough to exclude criminal liability. Many financial crime offences do not fully define the prohibited conduct but instead refer to commercial, administrative or tax regulations, which are sometimes referred to as “blank criminal provisions.” In such
cases, presenting expert evidence that demonstrates compliance with the relevant regulations can serve as a strong defence by establishing that the conduct was lawful. Some financial offences allow for voluntary regularisa - tion as a complete defence. In other cases, compen - sating the victim may serve as a significant mitigating factor. Monetary Thresholds In financial crime, monetary thresholds serve two dif - ferent purposes, as outlined below. • First, they may define the boundary between an administrative infringement and a criminal offence. If the amount involved is below the statutory threshold, only an administrative sanction applies; above it, criminal prosecution is possible. This applies to tax fraud, social security fraud, subsidy fraud and accounting fraud (see 3.5 Tax Eva- sion and Financial Reporting ), as well as market manipulation and insider dealing (see 3.4 Financial Services Crime ). • Second, the amount may not determine whether criminal liability arises, but instead affects the severity of the penalty. This is the case for fraud, breach of fiduciary duty, misappropriation, punish - able insolvency and embezzlement (see 3.1 Fraud and Dishonesty Offences ), as well as for tax fraud, social security fraud and subsidy fraud. 5.4 Whistle-Blower Protection Companies with more than 50 employees and public- sector bodies must have an internal whistle-blowing channel. There is also an external channel operated by the Independent Authority for the Protection of Whistle-Blowers. It is prohibited to engage in any form of retaliation against whistle-blowers. This protection extends to family members, colleagues and workers’ representa - tives who assist the whistle-blower. If a whistle-blower can show they suffered harm after making a report, the law presumes it was retaliation unless the employ - er proves otherwise.
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