Search for:

On February 20, 2017 , the Spanish Anti-Corruption Public Prosecutor set forth the findings against two executives of a Spanish company within the Criminal Section of the Audiencia Nacional (Spanish High Court specializing in corruption, terrorism  and organized crime) for making corrupt payments to a foreign public official. In the coming days the Audiencia Nacional will issue a judgment confirming the findings and consequently convict the two executives of the Spanish publishing company for paying a € 70,000 bribe to a Vice Minister of Equatorial Guinea in 2009, in relation to several contracts to publish schools books for the Equatorial Guinean state education system. The two executives involved in the payment of the bribe will be given a one-year jail sentence, a fine each of € 1,080 and be forbidden from receiving state aid, tax and social security benefits or participating in commercial contracts with public entities for a period of three years and six months.

In 2001 Spain signed up to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Since that date however, Spanish courts have not convicted a single Spanish company or individual for corrupting foreign public officials, despite the fact that Spain is a key player in the international trade, with € 259.62 billion in exports in 2016. In its 2016 report, the OECD working group expressed its “concerns about the low level of foreign bribery enforcement in Spain and the lack of implementation of the enforcement-related recommendations”. This first conviction could represent a turning point toward the effective enforcement of the OECD anti-bribery convention by public prosecutors and the courts.

The fact that the corrupt payment was made in 2009 has excluded the publishing company from criminal liability, as criminal liability for legal entities for corruption crimes was not introduced into the Spanish Criminal Code until 2010. Since the introduction of criminal liability for legal entities, not only could executive directors or employees be criminally liable for corrupt payments, but also legal entities. Legal entities could be subject to the following fines:

  • A daily fine, the amount of which would depend on the legal entity’s assets and which may apply from six months up to five years (from € 30 to € 5,000 per day), or up to five times the profit made, if this amount is greater
  • Additionally, the court can impose any of the following discretionary penalties:
    • Dissolution of the legal entity
    • Suspension of activities for up to five years
    • Closure of premises and establishments for up to five years
    • Temporary (up to 15 years) or indefinite prohibition to carry out the activities that led to a crim
    • Prohibition (up to 15 years) to benefit from state subsidies, enter into contracts with the public sector, or benefit from tax and social security incentives or benefits
    • Judicial intervention for an unlimited time of all or part of legal entity’s activities to protect general interest and employees

The adoption of a robust compliance program that meets the requirements of the Spanish Criminal Code could exempt the legal entity from criminal liability and consequently from the criminal fines referred to above.


Diego Pol is a senior associate in Baker McKenzie's Barcelona office. He focuses his practice on advising national and international clients in the area of corporate Compliance and prevention of legal risks, mainly in anti-corruption laws, export controls and sanctions, and corporate criminal liability. Diego likewise advises companies in corporate law and M&A transactions He has worked at various law firms in the United States and Spain and He teaches at the Master in International Business Law and the executive course on Corporate Compliance at ESADE Business & Law School).


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.