Employees of companies, especially when exercising management duties, are liable to make decisions based on an unfair compensation in their favour. In such cases, the decision may be acting, permitting or approving something prohibited by law or beyond the company's activity.
Corruption between individuals takes place when, acting unfairly, a gift or an economic benefit is offered or delivered in order to obtain a competitive advantage over other companies.
Corruption committed within the private sphere is ruled by a Section of the Criminal Code (hereinafter, CP) called “Corruption in Business”, such as corruption of foreign public agents, and specifically by article 286bis of the CP. This article was modified through Organic Law 1/2015, of March 30, which amended Organic Law 10/1995, dated November 23, of the Criminal Code. Such reform does not affect the essence of the offense or the protected legal right, which continues being a fair and honest competition. It is rather considered to be a technical amendment.
This is a crime for which a legal person can be convicted: if the requirements of article 31 bis CP have not been fulfilled with regard to the implementation of a criminal prevention program, the Company will be criminal accountable. Such prevention programs are established to avoid or, at least, to reduce the possibility of committing crimes within a Company.
The purpose of this regulation is to transpose Council Framework Decision 2003/568 / JHA of July 22, 2003 to fight against corruption in the private sphere. It is about protecting competition, so that companies in the market act in a fair and honest way, thus protecting their economic interests.
Firstly, it rules passive-type corruption, that is to say, it establishes the cases and corresponding penalty for the "corrupt" that receives, requests or accepts the bribery, since it is understood as a benefit or advantage of any nature that is not justified in the context of the business. Directors, administrators, employees and even collaborators of a trade company or a company may be qualified as active subjects in the commission of the crime, either directly or indirectly and for their own benefit or for a third party’s.
Favouring one party before others in a purchase or sale of goods, when hiring services or in a business relationship by a corrupt individual is qualified as a consideration. And secondly, the law prescribes a term of imprisonment of 6 months to 4 years together with the special disqualification for the exercise of any industrial or trade activity during 1 to 6 years as well as a fine of double to triple the value of the benefit or advantage of the specific case.
Active-type Corruption is qualified as a criminal offense and a penalty is established for the corruptor, for those who directly or indirectly promise, offer or grant to managers, administrators, employees or collaborators of a trade company or a company benefit or advantage without justification. This action aims to obtain preferential treatment on the part of the indicated subjects.
The same penalties as in the previous type are imposed to the person who tries to corrupt. Judges and courts shall keep in mind the amount of the benefit or the value of the advantage, as well as its importance to sentence a lower penalty and reduce the fine.
Specific type for cases of corruption in sport:
Likewise, to combat crime in the field of sport a specific type is added. The provisions mentioned in the previous paragraphs regarding fraudulent conduct and penalties are applicable. The same active subjects are established, that is to say, managers, administrators, employees or collaborators of a sport entity could also be considered as active subject but the law includes in that definition any athlete or referee who deliberately try to modify the result of an event, a match or a professional competition of special economic or sport relevance.
It should be understood as a sport competition of special economic relevance that in which the majority of participants receive remuneration, compensation or economic income to participate; and spot competitions of special sport relevance will be those qualified by the corresponding federation as the top official competitions in that discipline. Therefore, competitions at a lower stage fall outside this definition.
Therefore, it is intended to protect competition, so that there is equality and, as a consequence, economic interests such as premiums of participants, advertising and even the levels of audience in the respective media are also protected.
Finally, it provides that Article 297 CP is applicable. This article determines the definition of company for those cases, including in that definition cooperatives, savings banks, mutual funds, financial or credit institutions, foundations, commercial companies or any other entity of similar nature that permanently participates in the market for the achievement of its goals. It requires the company to bear legal personality and to act in the market through the development of a business activity.
As already mentioned, responsible legal entities will be convicted of an offense of corruption in the event that they do not have effective Compliance programs.
As established in article 288 CP, the corresponding penalties for the commission of this crime are the following:
a) Fine of 2 to 5 years, or a fine of three to five times the benefit obtained or that could have been obtained if the amount resulting is higher, when if the offense would be committed by a natural person the penalty would be imprisonment for more than two years.
b) Fine of 6 months to 2 years, or a fine for the same or twice the benefit obtained or that could have been obtained if the resulting quantity were higher, in the rest of the cases.
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