Legal practice
Compliance and white-collar crime
We defend companies and their directors when there is a criminal investigation, and we design the compliance model provided for in article 31 bis of the Spanish Criminal Code so that, if that moment comes, the company can show it did what was required. We also set up the whistleblowing channel required by Law 2/2023.
Lead lawyerFrancisco González Fernández
Corporate criminal liability
Since 2010 a company can be criminally convicted in Spain. Article 31 bis of the Criminal Code makes it liable for certain offences committed on its behalf and for its benefit by its directors or representatives, and also by its employees when the offence was possible because nobody exercised due control over them. It is not an open list: the company is only liable for the offences for which the Code expressly provides, among them fraud, money laundering, tax offences and bribery.
The same provision offers a way out, and that is the part that matters.
The compliance model that can exempt the company
Article 31 bis provides that the company is exempt if, before the offence, its governing body had adopted and effectively implemented an organisation and management model with surveillance and control measures suitable for preventing offences of that kind, and if supervision of the model was entrusted to a body with autonomous powers of initiative and control. In small companies, the governing body itself may take on that supervision.
A model that exists only on paper exempts nobody. What counts is that it works: identified risks, procedures, training, a channel for reporting breaches and a disciplinary regime that is actually applied. The UNE 19601 standard on criminal compliance management systems offers a recognised structure for building it and allows it to be certified.
Whistleblowing channel
Spanish Law 2/2023 on the protection of persons who report breaches requires companies with fifty or more employees to have an internal reporting system: a channel through which irregularities can be reported, anonymously if need be, with a designated officer in charge and a ban on retaliation against the person reporting. We design it, implement it and build it into the compliance model.
When proceedings have already started
If the company or its directors are under investigation, the defence starts by understanding what is being alleged and what can be proved. We defend in economic and company-law offences such as breach of directors' duties, criminal insolvency and money laundering, and we make sure the position of the company and that of the individuals under investigation are coordinated, or kept apart when their interests diverge.
Frequently asked questions
Can a company be criminally convicted in Spain?
Yes. Since 2010 article 31 bis of the Criminal Code allows a legal person to be convicted of the offences for which the law expressly provides, committed for its benefit by its directors or by employees over whom due control was not exercised.
Which companies must have a whistleblowing channel?
As a general rule, those with fifty or more employees, under Law 2/2023. Some entities must have one whatever their headcount, for example those subject to anti-money laundering rules.
Does UNE 19601 certification exempt the company from liability?
Not on its own. It helps to show that the model exists and is reviewed, but what matters is that it genuinely worked before the offence and was suited to the company's risks.
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