What is it about?
In 2010, after the entry into force of the Organic Law 5/2010 reforming the Criminal Code, the criminal liability of legal persons was introduced. Then with the reform of July 2015 and Circular 1/2016, the importance of this issue has been consolidated in the country.
The Spanish legislation contemplates a series of crimes for which legal persons may be liable, some of them we find in our legislation, such as: (i) Money Laundering; (ii) Financing of Terrorism; (iii) Bribery; (iv) Water Pollution; among others. However, Spain has a more exhaustive list of crimes, covering more and more areas and items.
Thus, legal entities will be liable to the extent that the following conditions are met:
- The offense is committed in the name or on behalf of the legal person, and for its benefit, by its legal representatives or by those who, acting on its behalf, are authorized to make decisions on behalf of the legal person or have powers of organization and control within the legal person.
- The crime is committed by those who, being subject to the authority of the aforementioned persons, have been able to carry out the acts because the due control over them has not been exercised in view of the circumstances of the case.
The possibility is included that a company may be exempted from liability if, prior to the commission of the crime, it has adopted and effectively implemented an organizational and management model that is adequate to prevent crimes, or to significantly reduce their commission. In the event that the implementation of this model was partial, this circumstance will be valued as a mitigating circumstance of the penalty.
The main aspects to be considered in an Organization and Management Model are the following:
- Identify the activities in whose scope the crimes to be prevented may be committed.
Generate mechanisms for managing financial resources to prevent the commission of crimes to be prevented.
- Designate a person in charge of overseeing the operation and observance of the
- Organization and Management Model.
- There are duties to inform Senior Management of possible risks and non-compliance.
- To contemplate disciplinary systems that adequately sanction non-compliance with the measures established in the model.
- Periodic reviews of the model.