In brief
- The offence of influence peddling punishes the improper use of a position of authority, power or personal relationship to condition the decision of an authority or public official and obtain a decision that may generate a financial benefit.
- Not every contact with a public office-holder or legitimate professional relationship is punishable, and no money need be paid to the official: this is what distinguishes it from bribery.
- For both an authority or official and a private individual, the penalty is imprisonment of six months to two years and a fine of one to two times the benefit sought or obtained, plus disqualification or a prohibition from contracting with the public sector; if the benefit is obtained, the penalties are imposed in the upper half of the range.
- The favourable decision need not actually be issued, nor the financial benefit materialise.
- The company may be sentenced to a fine of six months to two years and to other serious measures.
The offence of influence peddling (tráfico de influencias) punishes the improper use of a position of authority, power or personal relationship to condition the decision of an authority or public official and obtain a decision that may generate a financial benefit for the person exerting the influence or for another person or company.
Not every contact with a public office-holder is punishable, nor is submitting an application, handling an administrative matter or a legitimate professional relationship. The offence requires an abusive exploitation of a position of superiority, hierarchy or personal relationship, and conduct aimed at altering the impartial decision of the public official.
What does the offence of influence peddling consist of?
The criminally relevant conduct consists of exerting effective influence over an authority or public official, by taking advantage of a personal or hierarchical relationship or one arising from the office itself, in order to obtain a decision with potentially favourable financial content.
The influence may be exerted directly or through another person. For example, there may be a chain of intermediaries between the person seeking the benefit and the official who must decide. It may also benefit the perpetrator, a family member, a partner, a company or any third party.
The decision sought
The decision sought must be understood in a technical sense: it must be a decision adopted by the person with competence to decide a matter.
It is not enough, in itself, to try to obtain information, speed up a file, secure a meeting, obtain a report or request an action that does not constitute a decision. Such conduct may be relevant in administrative terms or may even fall within other offences if their requirements are met, but it does not automatically constitute influence peddling.
Difference from bribery
Nor is it necessary for money to be paid to the official. Influence peddling differs from bribery (cohecho) in that it can be committed without offering or delivering gifts, presents or remuneration.
Forms of influence peddling and their penalties
Influence peddling by an authority or public official
This form is committed by an authority or public official who influences another authority or official, using the powers of their office or a personal or hierarchical relationship, in order to obtain a decision that may produce a financial benefit for themselves or a third party.
The penalty is imprisonment of six months to two years, a fine of one to two times the benefit sought or obtained, and special disqualification from public employment or office for a period of five to nine years. Reference to other ancillary consequences not relevant to business activity is omitted here.
If the benefit sought is actually obtained, the penalties are imposed in the upper half of the range. The aggravation does not require the benefit to be obtained directly by the authority or official who exerted the influence: it may favour another person or company.
Influence peddling by a private individual
This offence may also be committed by a private individual who influences an authority or official by taking advantage of a personal relationship with that person or with another official or authority, with the aim of obtaining a decision that may generate a financial benefit for themselves or for others.
The penalty is imprisonment of six months to two years, a fine of one to two times the benefit sought or obtained, and a prohibition from contracting with the public sector. In addition, the court imposes loss of the possibility of obtaining public subsidies or aid and of the right to enjoy tax and Social Security benefits or incentives for a period of six to ten years.
Where the benefit is obtained, these penalties are imposed in the upper half of the range. The prohibition from contracting and the loss of public aid or benefits may have a particularly significant impact on a company, even if the conviction initially falls on a natural person connected with it.
Offering influence in exchange for remuneration
Anyone who offers to carry out the above conduct and, in exchange, solicits gifts, presents or any other remuneration, or accepts an offer or promise, is likewise punishable.
In this form, the influence need not actually be exerted, nor the intended decision obtained. The penalty is imprisonment of six months to one year. If the offender is an authority or public official, special disqualification from public office or employment for one to four years is added.
Must the decision actually be obtained?
In the basic forms, the favourable decision need not actually be issued, nor the financial benefit materialise. It is sufficient that influence is exerted with the aim of obtaining that decision and that benefit, provided that the other elements of the offence are present.
Actually obtaining the benefit triggers the aggravated form provided for in the relevant articles and results in the penalties being imposed in the upper half of the range. Therefore, the fact that the operation ultimately fails does not necessarily remove criminal liability.
Can a company be criminally liable for influence peddling?
Yes. A legal person (company) may incur criminal liability where the offence is committed in its name or on its behalf and for its direct or indirect benefit by its legal representatives, directors or persons with powers of organisation and control, or where it is committed by persons subject to its authority because the duties of supervision, monitoring and control have been seriously breached.
For the offences in this chapter, the penalty applicable to the legal person is a fine of six months to two years. The specific amount depends on the day-fine system and the financial capacity of the entity.
If the legal requirements are met, the judge may also impose serious measures on the company, such as suspension of activities, closure of premises, prohibition from carrying out certain activities, disqualification from obtaining subsidies or contracting with the public sector, judicial administration or, in the cases provided for by law, dissolution.
The company’s liability does not necessarily replace that of the natural person who exerted the influence. Both may be convicted where the requirements for criminal liability are met for each.
Civil liability and financial consequences
Anyone convicted of a criminal offence is also civilly liable if the offence has caused loss or damage. Civil liability may comprise restitution of property or sums, reparation of the damage and compensation for material and non-material loss.
In an influence peddling case, depending on the facts proven, claims could be made for damage caused to a public authority, to companies harmed by an irregular decision or to other affected persons. The return of sums obtained as a result of the unlawful operation may also be sought.
Where the legal person is convicted, its civil liability is joint and several with that of the natural persons convicted for the same acts. This means that the injured party may claim the full amount from any of the jointly and severally liable parties, without prejudice to any internal recourse actions that may subsequently arise.
A person who has benefited free of charge from the proceeds of the offence without having taken part in it may also be required to return or compensate, but only up to the limit of the benefit obtained.
Practical example
The director of a construction company asks a former public office-holder, who has a close personal relationship with the head of procurement at a city council, to use that relationship to secure the award of a works contract to his company. The intermediary tells the public official that he must favour the construction company and puts pressure on him to adopt a favourable decision, even though he does not hand over any money and has no formal competence to award the contract.
If it is proven that the personal relationship was used as a means of pressure to alter the impartial decision and obtain a financial benefit, the conduct may constitute influence peddling. If the contract is actually awarded and the company obtains the benefit sought, the corresponding aggravated form applies and additional liability may arise for other offences, such as unlawful administrative decision-making (prevaricación), fraud or bribery, if their respective requirements are met.
How can a company reduce the risk of influence peddling?
A company can reduce these risks through:
- internal controls over its dealings with authorities and officials;
- clear rules on intermediaries and consultants;
- traceability of dealings with the public sector;
- procedures for authorising and recording gifts, payments and advantages.
These controls do not legitimise unlawful influence, but they may be relevant to preventing criminal conduct and to assessing whether supervision and control measures exist within the organisation.
Frequently asked questions
What is the difference between influence peddling and bribery?
Influence peddling differs from bribery in that it can be committed without offering or delivering gifts, presents or remuneration. No money need be paid to the official.
Is it an offence to request a meeting or speed up a file?
It is not enough, in itself, to try to obtain information, speed up a file, secure a meeting, obtain a report or request an action that does not constitute a decision. Such conduct may be relevant in administrative terms or fall within other offences if their requirements are met, but it does not automatically constitute influence peddling.
Is there an offence if the favourable decision is never issued?
There may be. In the basic forms, the favourable decision need not actually be issued, nor the benefit materialise; if the benefit is obtained, the penalties are imposed in the upper half of the range.
What penalty does a company face for influence peddling?
A fine of six months to two years, the amount of which depends on the day-fine system and the financial capacity of the entity. If the legal requirements are met, the judge may also impose measures such as suspension of activities, disqualification from contracting with the public sector or dissolution.