The role of human resources in the criminal liability of legal entities. Part 1.
Without a doubt, the Spanish regime on the criminal liability of legal entities has become an issue with huge implications for all enterprises, though more so for companies with a larger economic size and higher human resource numbers.
Although it is since the reform of the Spanish Criminal Code made in Organic Law 5/2010, of June 22 that legal entities have been able to be held liable for specific criminal offenses by their directors and by their employees or dependents, Organic Law 1/2015, of March 30, 2015 (in force since July 1, 2015) has now clarified the Spanish regime on the liability of legal entities, clearly motivated by the intention to step up the prosecution of offenses committed from within companies.
Put concisely, under article 31 bis of the Spanish Criminal Code, legal entities may be held liable for the criminal offenses committed on their behalf, for their account, and directly or indirectly to their benefit, by their legal representatives or by anyone authorized to take decisions on the legal entity’s behalf, or holding powers of organization and control.
On the human resources side, companies may be liable for criminal offenses by their own employees if the infringement was committed while carrying on corporate activities and for the account, and directly or indirectly to the benefit of the company, by anyone who, while under the authority of the individuals mentioned above, was able to carry out the acts concerned because those individuals had been seriously in breach of their duties of supervision, monitoring and control over their activities.
Although not all criminal offenses can be committed by legal entities, the list of offenses for which legal entities may be held liable is a very long one (discovery and disclosure of secrets, fraud, criminal insolvency, computer damage, offenses against consumers, offenses against the public treasury (including tax-related offenses), bribery involving public officials, trading in influence, to name a selection).
In other words, the Spanish Criminal Code has expressly imposed on companies the duty to monitor employees and deter them, among other activities, from using their structures to commit offenses, and laid down extremely grave criminal penalties for failing to do so. These penalties may consist of fines, the shutting down of their operations temporarily, closure of their establishments, a ban on entering into government contracts, being disqualified for subsidies and public aid, and may even go as far as the dissolution of the company.
In another post on this subject later this week, we will look at the duties of supervision, monitoring and control imposed on companies.
Miguel Ángel Díaz and David Atienza
Garrigues Labor and Employment Department
