Personal Criminal Liability of Company Directors in Spain

1. De jure and de facto directors

A de jure director (administrador de derecho) has been appointed under company law and holds the office formally. A de facto director (administrador de hecho) actually runs the company, even without a valid appointment or without appearing as a director.

The Criminal Code treats both alike. Anyone acting as a de facto or de jure director is personally liable even where the conditions required by the offence, such as being the taxpayer, are met only by the company (article 31 of the Criminal Code).

For the Supreme Court, the de facto director is “the person who really gives the orders in the company, carrying out acts of management”, even if another person who appears as director formally performs them (STS 59/2007, of 26 January). In that case the Court acquitted a partner who kept the accounts, prepared cash-flow forecasts and filed the annual accounts, because there was no proof that he had real decision-making power. Carrying out support tasks, signing isolated documents or providing accounting assistance does not make anyone a de facto director.

2. The nominee director (testaferro)

Many foreign business owners and investors agree to act as directors of a Spanish company that someone else actually runs. It is a high-risk position: when there is a tax audit or a criminal complaint, the first person investigated is usually the one on the Companies Register.

Moreover, not having managed the company does not always avoid liability. The Supreme Court holds that nominees or “straw men”, that is, those who “knowingly agree to appear in front companies as mere instruments to facilitate the actions of the real actors”, are liable as necessary accomplices (cooperadores necesarios), whom the law also treats as principals (STS 464/2025, of 22 May, citing STS 165/2013, of 26 March; article 28 b of the Criminal Code). Claiming to have known nothing is not enough where the director deliberately chose not to know: whoever refuses to know what they can and should know accepts the consequences of their conduct (STS 296/2020, of 10 June).

The defence therefore cannot simply argue that the director did not manage the company. The decisive question is whether they knew of and accepted the facts, because necessary complicity requires knowing that the real perpetrator will commit the offence and intending to help (STS 464/2025). This must be proved with contracts, emails, powers of attorney, instructions, bank movements and the testimony of those who actually ran the company. A signature on a document is evidence, not a conviction: the prosecution must prove participation, knowledge and the link to the outcome.

3. The company’s liability does not replace the director’s

The company itself can be criminally liable for offences committed on its behalf and for its benefit by its representatives or by those with decision-making powers, and for offences by its employees where supervisory duties were seriously breached (article 31 bis of the Criminal Code).

These are separate liabilities. The fact that the company may be prosecuted does not exclude the director’s liability. Conversely, convicting the director does not automatically allow the company to be convicted: the prosecution must also prove a structural defect in its prevention mechanisms, and that defect is not presumed. The Supreme Court made this clear when acquitting a company whose director was convicted (STS 372/2025, of 11 April). If this is your situation, see My company is facing a criminal complaint and our criminal compliance page.

4. The main criminal risks for directors

Tax fraud. It is an offence to defraud the tax authorities by evading taxes or withholdings, or by obtaining undue refunds or tax benefits, where the amount evaded exceeds €120,000 in each tax or reporting period (article 305.1 and 2.a of the Criminal Code). Filing returns does not rule out the offence if the fraud is proved by other facts. Full regularisation (acknowledging and paying the debt) avoids punishment if made before the start of a tax audit is notified, or before a criminal complaint is filed (article 305.4). And if the debt is paid and the facts acknowledged within two months of being summoned as a suspect, the sentence may be reduced by one or two degrees (article 305.6).

Social security fraud. The same scheme applies, with a threshold of €50,000 over four calendar years (article 307.1 and 2), equivalent regularisation (article 307.3) and the same sentence reduction (article 307.5). Filing contribution returns does not rule out fraud if it is proved by other facts.

Criminal insolvency. While the company is insolvent or about to be, it is an offence to conceal or destroy assets, make disposals with no economic justification, simulate debts, keep double books or prepare accounts that conceal the real position, among other conduct (article 259.1). It is also punishable when committed through negligence (article 259.3). It can only be prosecuted once the debtor has stopped regularly meeting its obligations or insolvency proceedings have been opened (article 259.4).

Breach of fiduciary duty. Anyone who, having powers to manage the company’s assets, exceeds them and causes it loss is liable (article 252). It arises in transactions with related companies, personal payments from company funds or unjustified loans. A mistaken business decision is not in itself an offence.

False accounts. De facto or de jure directors who falsify the annual accounts or other documents that must reflect the company’s position, in a way capable of causing loss, commit a corporate offence (article 290). An accounting discrepancy is not the same as criminal falsification.

Workers’ safety. It is an offence for anyone legally obliged to do so, in breach of health and safety rules, to fail to provide the means needed to work safely, seriously endangering workers’ life or health (article 316). Where the offence is attributed to a company, the circle of liable persons is very wide: not only the directors, but also the managers in charge who were responsible for the facts and anyone who knew of them and could have remedied them but took no action (article 318). Depending on their duties, this can reach site managers, production managers or health and safety officers, as well as a director who knew of the risk and did nothing. Each person’s actual role in the safety organisation must therefore be analysed.

5. What a director should do

• Keep the documents that show who actually ran the company.
• Do not sign documents you do not understand.
• Ask for access to the accounts and bank accounts, and review tax, employment and health and safety obligations.
• Record in writing any irregular instruction or any refusal to give you information.
• If there is already an audit, a request, a complaint or a court summons, do not give improvised explanations and consult a criminal lawyer before making any statement.

The defence must reconstruct, in chronological order, the office held, the actual powers, the decisions taken, the information available and the involvement of advisers, employees or other directors. If the director did not actually control the company, the aim is to separate the register entry from real management and prove it with documents and witnesses.

To see how the procedure unfolds, read our guide to criminal proceedings in Spain. If you have already been summoned, see I have been summoned as a suspect.

Spanish legal terms you will come across

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