Search for:

The Spanish Senate has approved a new criminal code that will enter into force on the 1st of July 2015, after its final approval by the Spanish Parliament. The new Spanish criminal code sets forth the six elements to be met by a Compliance Program to exempt legal entities from being held criminally liable, provided that the Compliance Program has been adopted before a crime is committed by any of its officers or employees. Article 33 bis of the Spanish Criminal Code establishes that: if (a) the directors of a company have adopted a compliance program that meets the legal requirements under Spanish law, (b) the supervision of the program is entrusted to a company´s body or individual with authorized powers of initiative and control (Compliance Body), (c) the officers or the employees have committed a crime by intentionally violating the Compliance Program, and (d) the Compliance Body has not neglected its duties of supervision, surveillance and control, the company will be exempted from criminal liability for the crimes committed (including corruption offences) by its officers and employees. The six elements for the Compliance Program are established in Article 33 bis 5 of the Spanish Criminal Code. They are the following:

  1. Risk assessment of the crimes that should be prevented.
  2. Standards and controls to mitigate any criminal risks detected.
  3. Financial management system in place to prevent the identified crimes.
  4. Obligation to report to the Compliance Body any violation of the standards and controls (whistleblowing channel).
  5. Disciplinary system to sanction the violation by officers and employees of the Compliance Program.
  6. Periodical review of the Compliance Program, making the necessary adjustments when serious violations occur or when the company undergoes organizational, structural or economic activity changes.

In addition, the Spanish Criminal Code establishes that the Compliance Program shall be effective. Consequently the company will need to prove that its officers and employees have received proper training on the program. Looking at the requirements established by Spanish law, we can conclude that Spanish compliance programs will need to meet the five essential elements of a compliance program listed below as identified by Baker & McKenzie and used by many companies to design their domestic and international Compliance Programs. [ot-caption title=”Baker & McKenzie’s 5 Elements of Compliance” url=””]


Rafael Jiménez-Gusi is a partner in Baker McKenzie's Corporate Practice Group in Barcelona. He has more than 20 years of experience handling cross-border M&A transactions and company reorganizations. Mr. Jiménez-Gusi serves as secretary of several Spanish corporations, where he regularly advises on corporate compliance matters. He has organized, led and conducted numerous internal investigations involving allegations of corruption and company fraud. Mr. Jiménez-Gusi has served several leadership positions in Baker McKenzie at the office, regional and practice group level. This includes serving as member of the Firm’s Global Executive Committee. In addition to his legal practice, Mr. Jiménez-Gusi has been an associate professor of Ramon Llull University and ESADE Law School, and acts as legal counsel of Active Africa.

Write A Comment