Exemption from criminal liability with an effective compliance system

In 2011, Spain introduced the criminal liability of companies for a large number of white-collar crimes, including acts of corruption, with Article 31a of the Spanish Criminal Code (cf. Schorn WM 2011, 1689, 1691). Spanish criminal law has to date provided for mitigation for companies which have, amongst other things, established a compliance system, without specifying more details in this respect. Now, however, companies which have introduced an effective compliance system are able to obtain exemption from criminal liability. The prerequisite for this is that (i) the company’s management has established a compliance programme which meets specific minimum standards which are described in more detail by the applicable statutory regulations, (ii) a Compliance organisation has been set up which has the power to issue and monitor compliance with regulations, (iii) the compliance programme has not been intentionally breached and (iv) the compliance organisation has not breached its supervisory, monitoring and control obligations.

The new regulation contained in Article 33bis establishes six minimum requirements for a compliance programme, namely:

1. Risk assessment with respect to the criminal offence committed
2. Processes and controls for the minimization of criminal liability risks
3. Financial controls to prevent the offence committed
4. Obligation to report any breach of processes and controls to the compliance organisation
5. A system of sanctions in order to punish violations of the compliance programme committed by executives and employees
6. Periodic review of the compliance programme if serious breaches have taken place or if there have been organisational, structural or business changes at the company

Another prerequisite for obtaining exemption from criminal liability is that the company evidences that employee have received sufficient training with respect to the compliance programme.

Although the requirements placed on a compliance programme by the Spanish Criminal Code do not differ significantly by those established by Article 7 of the UK Bribery Act 2010, they are in line with generally recognised requirements for effective compliance. The decisive factor, however, is that the Spanish Criminal Code provides for a company’s exemption from criminal liability if these requirements have been met. Spanish criminal law therefore goes beyond the legal situation in Germany. In the area of German antitrust law, the existence of an effective compliance programme does not constitute a reason for not imposing a corporate fine, or even reducing a fine. In other areas of commercial criminal law, the existence of an adequate compliance system does not rule out a corporate fine pursuant to Section 30 of the German Regulatory Offences Act (Ordnungswidrigkeitsgesetz – OwiG). In fact, this only constitutes a factor which is to be considered for the discretionary decision of whether a fine is imposed or in what amount.

Companies now have the possibility to reduce the criminal liability they are exposed to in Spain considerably. The requirement for this, however, is that a compliance programme and the sufficient training of employees can be evidenced. Corporate groups are therefore well advised to ensure that their Spanish subsidiaries meet the compliance requirements and remedy and deficiencies quickly.