On acts benefitting the company
The redrafting of the Spanish Criminal Code establishes that legal entities shall be criminally responsible when offences are committed in their direct or indirect benefit. Hence an objective criterion of benefit for companies exists, which according to Circular 1/2016 issued by the Public Prosecutor’s Office (the “Circular”) includes those benefits obtained of a strategic, intangible or reputational nature.
In a practical sense, the benefit does not have to be quantifiable, its mere existence shall suffice.
Breach of the obligation of monitoring, surveillance and control
When the offence is committed by a person described in section b) (xxx), the new Article 31 bis of the Spanish Criminal Code requires that people described in the section a) (that is to say, supervisors and managers) have severely breached their obligation of monitoring, surveillance and control.
The Circular makes a very important comment on this section, stating that it paves the way for criminal charges to be brought against the persons described in section a) through commission or omission. A simple interpretation can be made: both administrators in charge of the monitoring of the compliance function, and the compliance officers with real powers to administer shall be the focus of the prosecutors.
Such interpretation of the Circular is rather disappointing for future compliance officers, as it would certainly mean an extra responsibility to be added to the already long list of administrators and directors’ responsibilities .
It is important to highlight that supervisory and control functions are non-delegable according to Article 249 bis of the Spanish Capital Companies Act. In order to justify that the new Article 31 bis conforms with the commercial law, the Circular states that “it is a way to emphasize that said control or scrutiny is external and superior with respect to the duties entrusted to or under the responsibility of others and also to define more adequately the duties of the new subjects who, like the compliance officer, have been added to the first section a)”.
Over and above this, the Circular states that given that such duties are non-delegable, any delegation of functions and the principle of trust inherent to corporate activities shall be no excuse for administrators.
In other words, administrators may not make use of compliance officers as guarantors to avoid the administrators themselves from being attributed with criminal responsibilities. This, however, will not exempt the compliance officer from being accused either.
Vilá Abogados
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18th March 2016
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