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With Organic Law 5/2010 of 22 June, which amends Organic Law 10/1995 of 23 November, of the Criminal Code, for the first time in Spain, the possibility for legal persons to be criminally liable was introduced, independently of the criminal liability that the company’s administrators or directors may have. Thus, Article 31 bis of the Criminal Code was introduced, which provides precisely that legal persons will be criminally liable for:
- A) Offences committed in the name of or on behalf of the legal person, and for its direct or indirect benefit, by its legal representatives or by those who, acting individually or as members of an organ of the legal person, are authorised to take decisions on behalf of the legal person or have powers of organisation and control within the legal person.
- B) Offences committed, in the exercise of social activities and on behalf of and for the direct or indirect benefit of the same, by those who, being subject to the authority of the natural persons mentioned in the previous paragraph, have been able to carry out the acts because of a serious breach by them of the duties of supervision, vigilance and control of their activity in view of the specific circumstances of the case.
Subsequently, in 2015 there was a new reform of the Criminal Code, through Organic Law 1/2015 of 30 March, which established that, if organisations had a Compliance Model, they could be exempted from the criminal liability of the legal personality. Thus, a new section was introduced in art. 31 bis describing the requirements that Criminal Compliance Models must meet, which are as follows:
- The management body has adopted and effectively implemented, prior to the commission of the offence, organisational and management models which include appropriate monitoring and control measures to prevent offences of the same nature or to significantly reduce the risk of their commission;
- Supervision of the functioning of and compliance with the prevention model in place is carried out and entrusted to an organ of the legal person with autonomous powers of initiative and control or which is legally entrusted with the task of supervising the effectiveness of the legal person’s internal controls;
- The individual authors have committed the offence by fraudulently evading the organisational and preventive models; and
- There has been no omission or insufficient exercise of its supervisory, monitoring and control functions by the entity referred to in the second condition.
RB can advise you on the development and implementation of the Criminal Compliance Model, to prevent the company from being involved in criminal proceedings, as long as it can be proved that the organisation has effectively implemented a Compliance Model.
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