Bribery (cohecho) in Spain: what it is, types, penalties and corporate liability

The offence of bribery (cohecho), commonly known as soborno, punishes payments, gifts, favours or promises intended to corrupt the conduct of an authority, a public official or a person participating in the exercise of a public function. It also punishes the official who solicits or accepts that advantage.

For a company, the risk may arise particularly in public procurement, obtaining licences and authorisations, inspections, subsidies, tenders and any other dealings with a public authority.

The payment need not ultimately achieve the result sought: in its main forms, the offence is complete upon the solicitation, offer, promise or delivery of the bribe.

What conduct can constitute bribery?

The advantage offered or received may consist of:

• money;
• gifts;
• travel;
• free services;
• sham jobs;
• unjustified discounts;
• loans that are not intended to be repaid;
• any other benefit with economic value or capable of influencing public conduct.

It may also benefit a third party, and may be delivered directly or through an intermediary.

The formal appearance of the transaction does not remove the criminal risk. An advisory contract, an invoice, an employment relationship or a loan may be regarded as a bribe if it conceals an advantage granted in order to obtain a specific act by a public official.

Bribery requires a connection between the advantage and the public function. Not every gift received by an official is an offence, but a gift offered or accepted by reason of the office or to obtain an act connected with it is. The conduct requires intent: the Spanish Criminal Code does not provide for a form of bribery committed through negligence.

Passive bribery: when the authority or official solicits or accepts the advantage

Passive bribery comprises several forms.

Act contrary to the duties of office

This offence is committed by an authority or official who solicits or receives a gift, favour or remuneration, or accepts an offer or promise, in order to perform an act contrary to the duties of their office, to refrain from performing an act they should perform, or to delay it without justification.

The penalty is imprisonment of three to six years and a fine of twelve to twenty-four months (day-fine system), together with special disqualification from public employment or office for a period of nine to twelve years. If the act performed, omitted or delayed also constitutes another offence, the penalty for that offence will also apply.

Act within the scope of the office

It is also an offence for an authority or official to solicit or receive an advantage in order to perform an act within the scope of their office, even if the act is objectively correct and does not constitute an infringement.

In this case, the penalty is imprisonment of two to four years and a fine of twelve to twenty-four months, together with special disqualification from public employment or office for a period of five to nine years.

Gift by reason of office

There is a less serious form where the authority or official accepts a gift offered in consideration of their office or function, without any need to prove a specific administrative act given in return.

The penalty is imprisonment of six months to one year and suspension from public employment or office for one to three years.

Subsequent reward

The same penalties apply where the gift or remuneration is received or solicited as a reward for conduct already carried out in accordance with any of the above forms. The fact that the payment is made afterwards does not exclude the offence.

Active bribery: when the private party or company offers or delivers the advantage

Active bribery is committed when a private party offers or delivers a gift or remuneration to an authority, an official or a person participating in the public function so that they perform an act contrary to their duties, perform an act within the scope of their office, omit or delay an act they are required to perform, or simply by reason of their office or function.

The company or the businessperson may be liable even if the official rejects the offer and even if the intended administrative act never takes place. The offer or promise may be sufficient for the offence to be complete.

What is the penalty for the private party who pays the bribe?

The private party receives the same prison and fine penalties as correspond to the authority or official, depending on the objective pursued.

Where the bribe relates to a public contract, a subsidy or an auction called by a public authority or public entity, there is an additional prohibition from obtaining public subsidies and aid, contracting with public sector entities and enjoying tax or Social Security benefits or incentives for a period of five to ten years.

Where the private party delivers the bribe because the official has requested it, the penalties for the corresponding form likewise apply. The fact that the initiative for the payment came from the official does not in itself remove liability, although it may be relevant in assessing the conduct and the circumstances of the case.

Special case: bribery in criminal proceedings

If the bribe is paid in criminal proceedings in favour of the accused by their spouse, stable partner, ascendant, descendant or sibling, the person paying the bribe receives a penalty of imprisonment of six months to one year.

Exemption for a private party who reports the offence

A private party who has occasionally given in to a request for a gift or remuneration made by an authority or official, and who reports the facts to the competent authority before proceedings are opened, is exempt from punishment, provided that the report is made within two months of the events.

The exemption requires:

• that the payment was made in response to a request from the official;
• that the private party’s conduct was occasional;
• that the time limit and reporting requirements are strictly met.

It does not protect anyone who participates actively and in a planned manner in the corruption, nor anyone who reports once proceedings have already begun.

Can a company be criminally liable for bribery?

Yes, but not merely because one of its employees has committed the offence. A legal person (company) may be liable where active bribery is committed in its name or on its behalf and for its direct or indirect benefit by a representative, director or person with powers of decision, organisation or control. It may also be liable for acts of employees subject to those persons where the offence was made possible by a serious breach of the duties of supervision, monitoring and control.

Penalties for the company

The penalty for the legal person is a fine, which may be:

• two to five years, or three to five times the profit obtained, if the offence committed by the natural person carries a prison sentence of more than five years;

• one to three years, or two to four times the profit obtained, if the prison sentence provided for exceeds two years but does not exceed five;

• six months to two years, or two to three times the profit obtained, in all other cases.

The court may also impose measures such as dissolution of the legal person, suspension of its activities, closure of premises, prohibition from carrying out certain activities, disqualification from obtaining subsidies or contracting with the public sector, and judicial administration, according to the seriousness of the case and the applicable legal rules. In offences connected with public contracts, subsidies or auctions, the prohibition from contracting and obtaining aid may extend to five to ten years.

Compliance programme

A compliance programme (organisation and management model) implemented and effectively enforced before the events may exclude or mitigate the company’s liability, provided that the programme is adequate, is genuinely supervised and the offence was committed by fraudulently circumventing its controls. A formal document that is not effectively applied does not, in itself, provide that protection.

Civil liability and confiscation

Anyone convicted of an offence is civilly liable if the acts give rise to loss or damage. Civil liability may include restitution, reparation of the damage and compensation for material and non-material loss.

In a bribery case, depending on the circumstances, claims may be made for damage caused to the public authority, costs arising from the irregular conduct, financial loss caused by unlawful contracting or amounts that must be returned. The existence and amount of the damage must be proven in the proceedings; bribery does not necessarily require any quantifiable financial loss to have occurred.

In addition, the offence may entail confiscation of the bribes, the instrumentalities used, the profits obtained and the assets into which they have been transformed. If those assets cannot be confiscated, confiscation may be applied to other assets of equivalent value. The civil liability of the legal person is joint and several with that of the natural persons convicted for the same acts.

Business example

A company taking part in a public tender offers a public official a cash payment, a sham job for a family member or a free personal service in exchange for a favourable assessment of its bid. The offence may exist from the moment the offer is made, even if the official rejects it, even if the company is not awarded the contract and even if the procurement file is never altered.

Liability may extend to the executive who made the offer, to other participants who knowingly collaborated and to the company itself if the offer was made for its benefit and any of the grounds for corporate criminal liability are present.

Conclusion

Bribery is not limited to the direct payment of money to an official. It also covers gifts, favours, sham contracts, advantages for third parties and promises intended to influence a public decision or act.

To reduce criminal risk, companies should establish clear rules on gifts, entertainment expenses, intermediaries, relations with officials and public procurement, together with internal controls that make it possible to detect and report any improper offer.

Frequently asked questions