Smuggling (contrabando) in Spain: what it is, penalties and corporate liability

What is the offence of smuggling?

The offence of smuggling (contrabando) punishes certain unlawful operations involving the import, export, trade, possession, movement or transit of goods and other property subject to customs or administrative control.

It is not limited to the clandestine entry of products into Spain: it may also be committed where goods are exported without being declared, where they are traded without it being possible to prove their lawful import, or where a customs authorisation is obtained by means of false information.

The rules distinguish between the criminal offence of smuggling and the administrative infringement of smuggling. The difference depends mainly on the type of goods, the conduct carried out and their value. The law also allows several operations to be aggregated where they form part of a preconceived plan or take place on the same occasion.

When is smuggling a criminal offence? Main forms

Goods that may be lawfully traded

There is an offence where the value of the goods is equal to or greater than €150,000 and they are imported or exported without being presented for customs clearance. Concealing goods within a customs area is equivalent to failing to present them.

The possession, movement or trade of non-Union goods is also punishable where the requirements for proving their lawful import are not met. Likewise, it is an offence to release for consumption goods placed under the transit procedure in breach of customs obligations.

The import or export of goods subject to commercial policy measures without meeting the applicable requirements may also constitute smuggling. The same applies where an authorisation or customs release of goods is obtained by means of a false reason, false documents or any other unlawful means.

Goods subject to special controls

Where the value reaches €50,000, there may be an offence if the operation concerns any of the following:

• Items forming part of the Spanish Historical Heritage exported without the necessary authorisation or under an unlawfully obtained authorisation.

• State-monopoly or prohibited goods (géneros estancados o prohibidos), including products whose manufacture, trade, possession or movement requires special conditions.

• Protected specimens of wild fauna or flora and their parts or products.

• Defence material, other material, or dual-use products and technologies without the required authorisation or under an authorisation obtained by means of false information.

• Certain products subject to international controls, such as certain products that could be used to inflict torture or to carry out the death penalty.

• Drug precursors without the corresponding authorisations.

Tobacco, drugs, weapons and organisations

Smuggling of tobacco products has a specific threshold: it is an offence where their value is equal to or greater than €15,000. Tobacco products are legally classified as state-monopoly goods, so import, export, trade, possession or movement carried out without meeting the legal requirements may constitute the offence.

There is also an offence irrespective of value where the goods are toxic drugs, narcotics, psychotropic substances, weapons, explosives, biological agents, toxins, toxic chemicals and their precursors, or other goods whose possession constitutes an offence. The same rule applies where the smuggling is carried out through an organisation.

Aggregation of operations

Several operations which, taken separately, do not reach the thresholds of €150,000, €50,000 or €15,000 may constitute a single offence if they are carried out pursuant to a preconceived plan or taking advantage of the same opportunity and their aggregate value reaches the relevant threshold.

For example, a company that distributes small batches of tobacco in several deliveries without proving their lawful import may be liable for the offence if the operations form part of a single plan and their aggregate value reaches €15,000.

Can smuggling be committed through negligence?

Yes. The conduct described is punishable where committed through gross negligence. This is particularly relevant in business activities involving complex supply chains, intermediaries, customs agents or import and export managers.

Not every error or oversight is sufficient. The negligence must be gross, and the assessment will depend on the specific circumstances:

• the nature of the goods;
• the controls omitted;
• the information available;
• the warnings received;
• the level of diligence required of the company or those in charge of it.

What is the penalty for smuggling?

The basic penalty for natural persons is imprisonment of one to five years and a fine of one to six times the value of the property, goods, products or items smuggled.

The law requires the penalties to be applied in the lower half of the range in certain cases involving goods that may be lawfully traded, and in the upper half in the other cases provided for by law. For offences committed through gross negligence, the penalty is reduced by one degree.

The penalty is increased by one degree where the offence is committed through or for the benefit of persons, entities or organisations whose nature or activity particularly facilitates its commission. In addition, an attempt may lead to a reduced penalty in accordance with the general rules of the Spanish Criminal Code.

In cases of conspiracy or proposal to commit smuggling of defence material, other material, or dual-use products and technologies, there is also a specific criminal response, with a penalty one or two degrees lower than for the completed offence.

Can a company be criminally liable for smuggling?

A legal person (company) may be criminally liable if the offence is committed in its name or on its behalf, for its direct or indirect benefit, by a legal representative or by a person with powers of organisation, management or control. It may also be liable where the offence is committed by a person subject to the authority of those in charge of the company and there has been a serious failure to fulfil the duties of supervision, monitoring and control.

The company is, in all cases, liable to a proportional fine of two to four times the value of the smuggled goods. In addition, it may be prohibited from obtaining public grants and aid, contracting with public authorities or enjoying tax or Social Security benefits and incentives for a period of one to three years.

If the offence concerns goods in the second group of forms (goods subject to special controls), the suspension, for between six months and two years, of import, export or trade activities in the category of goods concerned may be ordered. In particularly serious cases linked to drugs, weapons, explosives, prohibited goods or organisations, the closure of the premises or establishments where those goods are traded may be ordered.

The criminal liability of the company does not exclude the individual liability of directors, managers, employees or other persons involved in the facts.

Civil liability, confiscation and valuation of the goods

Civil liability covers the unpaid tax and customs debt that could not be assessed owing to the limitation period or the other grounds provided for by law, including late-payment interest where applicable. This amount is claimed in the criminal proceedings and may be collected by the tax authorities through the enforced collection procedure.

Furthermore, every conviction for smuggling entails confiscation of the goods involved in the offence, the instruments used, the means of transport used —subject to the exceptions provided for by law— and the gains obtained. If those items cannot be confiscated, confiscation may extend to other property of equivalent value. The protection afforded to third parties acting in good faith prevents the confiscation of lawfully traded goods belonging to them or lawfully acquired by them.

The value of the goods is decisive both for determining whether there is an offence and for setting the fine. Valuation is carried out in accordance with the legal rules applicable to each class of goods, taking as a reference, in principle, the date on which the offence was committed or the date of its discovery or seizure.

Business example

A company engaged in international distribution acquires technological equipment subject to export controls and ships it to a third country without obtaining the required authorisation. If the value of the operation reaches the legal threshold and the conduct is carried out knowingly, the individuals involved may be criminally liable and, if the requirements for attributing liability to the legal person are met, so may the company itself.

In addition to imprisonment and fines for the natural persons, the company could face a proportional fine, a prohibition on contracting with the public sector and the suspension of its export activities for that category of products.

The final legal classification requires examining the type of goods, their value, the customs documentation, the necessary authorisations, the involvement of each person and the system of controls in place within the company.

Frequently asked questions