Indeed, the reform of Article 31bis of the Penal Code provides for the possibility of mitigating the criminal liability of a legal entity, or even exonerating it, provided that a criminal prevention plan has been implemented to prevent offenses within the company.

Why implement a criminal prevention plan in Spain?

Although this criminal prevention plan is not mandatory in Spain, we strongly recommend that Spanish companies work towards its implementation.

Indeed, it is the responsibility of the legal representatives to implement the "criminal compliance" methods provided for in this new reform.

We emphasize this implementation all the more when the share capital of the Spanish company is held by a foreign company or when the company's legal representatives are foreign and act through intermediaries (agents, employees, etc.).

The transition to a criminal prevention plan in Spain is a tool for legal certainty and guarantees shareholders and legal representatives the exercise of a minimum level of control within the framework of their governance.

Who should oversee this system?

In practice, the criminal prevention plan in Spain will be developed and overseen by the Board of Directors or the legal representative in companies with simplified accounts.

In other companies, the role of the "compliance officer" must be fulfilled by an ad hoc committee established within the company or by an external auditing body.

What should a criminal prevention plan contain?

This prevention plan must:

  • Identify the activities in which offenses could be committed. Therefore, due diligence must be conducted beforehand to assess the risks.
  • Establish protocols or procedures for decision-making within the company regarding the identified offenses.
  • Implement procedures for managing financial resources to prevent the commission of the identified offenses.
  • Establish a requirement for information and reporting to the « compliance officer »,
  • Implement a disciplinary system to penalize non-compliance with the prevention plan.

Links :