Model for Criminal Liability of Legal Entities (initials in Spanish RPPJ)
In light of the new Article 31 bis of the Spanish Criminal Code (CP), legal entities will be criminally responsible:
a) For offences committed in their name or on their behalf, and for their direct or indirect benefit, by their legal representatives or by those acting individually or as part of a body of the legal entity, who are authorized to make decisions on behalf of the legal entity or execute powers of organization and control within said entity.
b) For offences committed in the course of corporate activities and on behalf of and for their direct or indirect benefit, by those who, under the authority of the individuals mentioned in the preceding paragraph,were able to carry out the actions having seriously breached their monitoring, surveillance and control duties, considering the specific circumstances of the case.
According to the Circular, the responsibility of Article 31 bis of the CP remains of a vicarious type, in other words by transfer, in a way that the RPPJ is not autonomous. Nonetheless, the Circular mentions that in the new wording of the article, precepts that reinforce the guilt and self-responsibility of the legal entity exist.
On the other hand the Circular says that the RPPJ is not objective, as it requires, for crimes committed by the persons described in section b) above, that the persons described in letter a) above (managers, representatives) have breached the duties of supervision, monitoring and control.
I believe that the Circular contradicts this point. If the company has to prove (in the case of crimes committed by persons described in section a)) that it has a compliance program, does this mean that if the company does not demonstrate this, the application of the RPPJ shall be automatic, and therefore objective? And if so, can Article 5 of the CP be deemed to have been fulfilled ?
People who fall under the description of letter a) of Article 31a.
One of the issues that may cause debate is who exactly falls under the umbrella of the definition of the letter a) of said Article 31 bis. The definition of the Circular is extraordinarily broad.
On the one hand, when making reference to members of the corporate bodies of the legal entity, it is difficult to know whether it is referring to the differentiation that the Capital Companies Act (LSC) makes between the directors who are assigned executive functions and those who are not.
On the other hand, those persons with the faculty to make decisions on behalf of the company are many in a medium or large business organization. We do not know what features such authorization should have, whether a middle manager with faculty to contract on behalf of the company (for example, the person in charge of choosing on a daily basis one supplier or another for production line) who has no powers of attorney may come under this definition.
People who fall under the description of the letter b) of Article 31bis.
The range of persons described under the letter b) extends far beyond the employees of the legal entity. The circular understands that self-employed, contract workers and employees of subsidiary companies may be included here.
Consequently, two questions arise, first, when the Circular speaks of subcontractors, we do not know if it covers all types of subcontracts or whether we should keep to the definition of case law on the activity itself applicable to the transfer of corporate responsibility laid down in Article 42 of the Workers’ Statute.
Or we can use a different criterion, which in this case are those subcontractors that are “under the authority” of the managers of the legal entity. Here again we must draw new boundaries. A good example would be an employee of a company that installs the router in the office and in doing sohe pirates some software in order to install a free firewall, this action benefits the company and is outsourced.
On the other hand, when the Circular mentions employees of subsidiaries who are found to be within the perimeter of their corporate domain, again we are faced with an undetermined concept, because we do not know who is inside the perimeter of the corporate domain of a company.
Vilá Abogados
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11th March 2016
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