“Of the crimes against the Public Treasury and against the Social Security”, is entitled the Title XIV, of the Book II, concerning the crimes and the punishments, of the Spanish Penal Code (CP).
It is a title formed by eleven articles, all of them having in common the relation of the active subject with some kind of public administration, either as obliged to the payment of a financial consideration, or as recipient of a benefit or subvention. Let us now make an effort trying to summarize the content of each of the eleven articles: The article 305, punished who defrauds the Public Treasury; The article 305 bis, is an aggravated subtype of the previous crime of Public Treasury defrauding; The article 306, punishes who defrauds the European Union´s general budgets or others administered by it; The article 307, covers the fraud to the Social Security; The article 307 bis, is another aggravated subtype, this time of the preceding article 307; The article 307 ter, sanctions the undue enjoyment of benefits from the System of the Social Security; The article 308, categorizes the behavior of obtaining benefits or subventions from the Public Administrations, falsifying the conditions required for their granting or hiding those which would have impede it; The article 308 bis, regulates the suspension of the execution of the punishments for some of the crimes regulated in this chapter; The article 309, was abolished; The article 310, punishes the falsifying of the business accounting, books and tax records, and; Lastly, the article 310 bis, regulates the penal liability of the legal entities when they are liable of any of the crimes regulated in this title.
Let us now pass to analyze in detail each of these articles.
– Article 305:
The Title XIV begins with the article 305, where, as we already saw, it is punished the crime of fraud of the Public Treasury. It is a long article, which is made up of seven points. Firstly, we are going to read it, and subsequently we are going to study its meaning.
“Article 305.
1. Whoever, by action or omission, defrauds the state, regional, foral or local Public Treasury, eluding the payment of taxes, retained amounts or which should have been retained or advance payments, unduly obtaining refunds or enjoying tax benefits in the same way, whenever the amount defrauded, the amount not deposited of the retentions or advances payments or of the refunds or tax benefits, unduly obtained or enjoyed exceeds one hundred twenty thousand euros shall be punished with the punishment of imprisonment from one to five years and fine up to six times the aforementioned amount, save that he had regularized its tax situation in the terms of the point fourth of the present article.
The mere presentation of tax declarations or self-assessments does not exclude the fraud, when this is accredited by other facts.
Besides the punishments pointed out, shall be imposed to the person liable the loss of the possibility of obtaining subventions or government aids and of the right to enjoy of the benefits or tax incentives or of the Social Security for a period from three to six years.
2. For the purpose of determining the amount mentioned in the previous point:
a) If they are taxes, retentions, advance payments or devolutions, periodic or of periodic declaration, in order to calculate the defrauded we shall attend to the tax period or of declaration, and if they are of less than twelve months, the amount defrauded shall be referred to the natural year. Notwithstanding the above, in the cases in which the fraud is carried out within a criminal group or organization, or by persons or entities that act under the appearance of a real economic activity without effectively developing it, the crime shall be pursuable from the moment the amount set in the point one is achieved.
b) In the rest of the cases, the amount shall be understood referred to each one of the different concepts by which a taxable event is susceptible of tax settlement.
3. The same punishments shall be imposed upon whoever commits the behaviors described in the point one and whoever eludes the payment of any amount which he should deposit or unduly enjoys a benefit legally obtained, when the facts are committed against the European Union´s treasury, whenever the amount defrauded exceeds the 100.000 euros in the period of one natural year. Notwithstanding the above, in the cases in which the fraud is carried out within a criminal group or organization, or by persons or entities which act under the appearance of a real economic activity without effectively developing, the crime shall be pursuable from the same moment the amount set in this point is reached.
If the defrauded amount does not surpass the one hundred thousand euros but exceeds the ten thousand, shall be imposed a punishment of imprisonment from three months to one year or fine up to three times the aforementioned amount and the loss of the possibility of obtaining subventions or government aids and the right of enjoying of the benefits or tax incentives or of the Social Security during a period from six months to two years.
4. The tax situation shall be considered regularized when the tax debtor has proceeded to the whole recognition and payment of the tax debt, before the Tax Administration has notified to him the beginning of tax investigations aimed at determining the tax debts object of the regularization or, in the case that such actions had not taken place, before the Public Prosecution, the State Attorney or the legal representative of the regional, foral or local Administration, files a complaint or report against him, or before the Public Prosecution or the Examining Magistrate carry out any act which allows him to have formal knowledge of the beginning of the investigation.
Likewise, the effects of the regularization established in the previous paragraph shall be applicable when are satisfied the tax debts once prescribed the right of the Administration to determine them through an administrative channel.
The regularization by the tax debtor of his tax situation shall impede his persecution for the possible accounting irregularities or other documentary falsifications that, exclusively in relation with the tax debt object of regularization, he might have committed with previous character to the regularization of his tax situation.
5. When the Tax Administration appreciate evidences of having been committed a crime against the Public Treasury, it may calculate separately, on the one hand the concepts and amounts which are not linked with the possible crime against the Public treasury, and on the other hand, those linked with the possible crime against the Public Treasury.
The calculation of a tax pointed out in the first place in the previous paragraph shall follow the ordinary proceeding and be subjected to the appeal system of all tax calculation. And the result which in its case derives from those concepts and amounts which are linked with the possible crime against the Public Treasury shall follow the proceeding which for that purpose establishes the tax legislation, without prejudice that it shall be finally adjusted to the decided in the penal proceeding.
The existence of the penal proceeding for crime against the Public Treasury does not bring the collection action to a halt. By the Tax Administration may be begun the proceedings aimed to the collection, save when the Judge, ex officio or at the request of a party, has agreed the suspension of the suspension of the proceeding of execution, though a guarantee shall be previously granted. If the guarantee may not be wholly or in part granted, exceptionally the Judge may agree the suspension with total or partial dispensation of guarantees if he appreciates that the execution may cause irreparable damages or of very difficult reparation.
6. The Judges and Courts may impose to the tax debtor or to the author of the crime the punishment inferior in one or two degrees, whenever, before elapsing two months from the court summons as imputed he satisfies the tax debt and judicially recognizes the facts. These shall be applicable also with regard to other participants in the crime different from the tax debtor or the author of the crime, when they actively collaborate with obtaining decisive proofs for the identification or capture of other persons liable, in order to completely clarify the criminal facts or find out the patrimony of the tax debtor or other persons liable of the crime.
7. In the proceedings for the crime contemplated in this article, for the execution of the punishment of fine and the civil liability, which shall comprehend the amount of tax debt which the Tax Administration has not included for prescription or another legal cause in the terms established in the General Tax Law 58/2003, of 17 December, including its default interests, the Judge and Courts shall obtain the help of the services of the Tax Administration which shall demand them by the administrative enforcement proceeding in the terms established in the cited Law.”
Article 305.1:
As it is logical, we are going to start from the beginning. In order to achieve our purpose we are going to pick parts of this precept and explain them. This first point begins, “1. Whoever, by action or omission, defrauds the state, regional, foral or local Public Treasury,…” Here, the precept introduces us the active subject of the crime, who can only be the tax debtor, therefore, this is a special own crime, which can only be committed by someone who has the obligation to pay his taxes. According to the article 35 of the General Tax Law (LGT): “1. Tax debtors are those natural or legal persons and the entities to which the tax legislation imposes the fulfillment of the tax obligations.”
The precepts continues saying, “…eluding the payment of taxes, retained amounts or which should have been retained or advance payments, unduly obtaining refunds or enjoying tax benefits in the same way, always that the amount defrauded, the amount not deposited of the retentions or advances payments or of the refunds or tax benefits, unduly obtained or enjoyed exceeds one hundred twenty thousand euros…”. Now, we are going to talk about its objective elements, for this, we are going to make use again of its beginning. The typical action consists in, by action or omission, defrauding the Public Treasury, eluding the payment of taxes, retained amounts or which should have been retained or advance payments, or unduly obtaining refunds or enjoying tax benefits in the same way.
For me, the core of the typical action consists in defrauding the Public Treasury, though subsequently the own precept enumerates the ways in which it can be done, being a closed list. The use of the verb to defraud has generated some difficulties interpreting the type, for it is not a secret that there is a Title VI in the CP which exclusively regulates frauds, and that contains a crime like the swindle, very similar to the one analyzed. But in this case, the term to defraud has a more limited scope, according to the Spanish Provincial Court of Madrid´s sentence number 7866/2023: “the term fraud is not linked with the action, this only means “patrimonial damage”, being irrelevant whether this damage was achieved producing his error in the passive subject or not.” Remember that, in the crime of swindle (art. 248 CP), the relevant is the use of enough deception in order to produce an error in the other, which unavoidably is united with the employment of some scheme by the active subject. Pay attention to the difference between both scenarios, while in the crime of swindle is necessary some activity by the active subject aimed at deceiving the passive subject, this activity is not required in the defrauding of the Public Treasury, which as the precept expressly states can be committed by action or omission. This difference is important, for regarding as illicit cases in which the active subject has not induced to any kind of error to the Tax Administration, for example, declaring the “taxable amount”, limiting itself to not declare any, for in these cases could be alleged that there was no fraud. But this has not been the majoritarian criterion followed by the Spanish Courts, the lack of declaration of the taxable amount, is equivalent to hide the obligation to declare, what fits with the said by the precept, since the fraud can be committed by action or omission. Let us see some examples:
– The Spanish Supreme Court´s sentence number 523/2006, of 19 May, maintained with all clarity that “the defense maintains, on the other hand, that it is necessary to do something more than not paying and that it is required an “evasion or fraud maneuver”. It is, however, evident, that when the law defines the typical behavior refers itself to both the action and the omission. Therefore, this equivalence of both ways of the behavior shows that the simple omission is enough, for if it was demanded that the omission was accompanied by a “evasion or fraud maneuver”, which can only be, by definition, active, the reference to the omission would be superfluous.
– On the other hand, the Spanish Supreme Court´s sentence number 801/2008, of 26 November, declared that “the concurrence of the subjective element requires that the author had acted with “fraudulent intent”, this is, with the clear and precise conscience of the duty to pay and the intention of infringing this duty.
– In this regard, the Spanish Supreme Court´s sentence number 717/2016, of 27 September, clarifies that: “in relation with these affirmations, it is understood that, who omits the declaration which legally he was obliged to make, is in reality hiding the existence of the taxable amount, thus not existing difficulties to consider this behavior included in the typical description, since acts with deception who shows as real something that is not. In the case, the inexistence of taxable amount.”
But we have to be more precise, because the simple lack of payment of the tax is not by itself illicit, for example, when the tax debtor has truthfully declared the taxable amount, but does not have enough means to pay the taxes. At least, there has to be some concealment, on the other hand, it is going to be illicit, the behavior of who being obliged to declare, does not do it, implicitly denying the existence of a taxable amount and his obligation to declare it. Pay attention to this Provincial Court of Soria´s resolution number 82/2023: “However, what is penally punished is not the omission of the declaration by itself, formally considered, isolated from any assessment. Nor the non-payment, understood as the omission of the material deposit of the money, if there has been a truthful declaration. For the type demands a defrauding behavior and not the mere lack of fulfilment of the tax duties. In this way, the omission of the declaration will be only typical if this supposes a concealment of the relevant tax reality. It is true that normally, the omission of the declaration supposes the malicious concealment of the taxable event, and the declaration presented falsifying the data implies a concealment of the characteristic of this which give rise to the debt, being equivalent behaviors. This is why, in principle, once the term to present the voluntary declaration ends in the periodic taxes with self-assessment, without having been presented this, the crimes is considered consummated, being enough in those cases with the mere omission, since it is reasonably interpreted and assessed as a behavior enough suitable for eluding the payment of the tax for it supposes the concealment of the existence of the taxable event or of its characteristics.”
Then, the typical action consists in an action or omission for defrauding the Public Treasury, eluding the payment of taxes, retained amounts or which should have been retained or advance payments, unduly obtaining refunds or enjoying of tax benefits in the same way.
However, not always that it is carried out this typical action could be considered that the objective elements of the type have been fulfilled, the defrauding of the Public Treasury must exceed the 120.000 euros. It is precisely this requisite, the one which indicates with all clarity that we are before a crime of result, the type demands a damage to the Public Treasury which exceeds of such amount. In the rest of cases, when this amount is not exceeded, the behavior shall be punished administratively.
On the other hand, talking about the subjective elements of the type, it is evident that this is a malicious crime, which does not admit its commission by imprudence, above all for not fulfilling the established by the article 12 of the CP, which demands that these cases must be expressly specified in the precept. But there is more, because, if before we had to make an effort explaining how the simple omission of the payment of the tax can be punished, if there was a concealment of the obligation, these cases, in which the fraudulent intent of the active subject is not very clear, have served as basis for understanding fulfilled the subjective elements of the type, when what we have found is the so-called eventual malice, in other words, when the active subject has envisaged that his behavior may give rise to the fulfillment of the elements of the type. The Spanish Provincial Court of Madrid´s sentence number 7866/2023: “According to the above, it is possible to conclude that the subjective element or malice consists in knowing the tax obligations, in other words, the circumstances that generate the obligation of paying which are concreted in the fact that the author has acted with “fraudulent intent”, this is, with the clear and precise conscience of the duty to pay and the intention of infringing such duty. Despite this, being malicious crimes, since the malice is inherent to the fraudulent intent of the subject, due to the extreme difficulties which may suppose to prove the malice in all the extension of the type, it has been accepted the eventual malice as title of imputation of the crime, being consummated the crime once the tax period has concluded, being authors those who carry out the typical behaviors, eluding the tax obligations or unduly taking advantage of the tax benefits.”
Summing up, we can conclude that this is a special own crime and of result. But other of its characteristics, is that it is a blank criminal law provision, this means that it has to be completed with the rest of general and particular tax regulations applicable to the case. As, for example, the LGT and the Corporate Tax Law, or the LGT and the VAT Law.
Regarding the legal good protected, the jurisprudence is oscillating. Thus, the Spanish Supreme Court´s sentence number 209/2019, of 22 April, says that the legal good protected is the patrimony of the Public Treasury in its manifestation concerning the tax collection. While the Spanish Supreme Court´s sentence number 89/2019, of 19 February, points out as legal good protected the economic interest of the Public Treasury or the principles of tax solidarity.
Article 305.2:
In the second point of the article 305, are established the criterions for considering that the limit marked in the previous point, to exceed the 120.000 euros, has been reached, and therefore, when the behavior would be penally punishable.
In its point a), is established a general criterion, “a) If they are taxes, retentions, advance payments or devolutions, periodic or of periodic declaration, in order to calculate the defrauded we shall attend to the tax period or of declaration, and if they are of less than twelve months, the amount defrauded shall be referred to the natural year.” And one exception, “Notwithstanding the above, in the cases in which the fraud is carried out within a criminal group or organization, or by persons or entities that act under the appearance of a real economic activity without effectively developing it, the crime shall be pursuable from the moment the amount set in the point one is achieved.”
Afterwards, we have a point b) according to which for the rest of the cases, “the amount shall be understood referred to each one of the different concepts by which a taxable event is susceptible of tax settlement.”
This second point is important, since the fulfilment of these criterions is what determines whether the crime has been consummated or not, remember, that this is a crime of result. In this way, the damage to the Public Treasury is produced, in the majority of the cases, at the end of the tax period or declaration period.
Article 305.3:
In the third point of the article 305, we find a variant of the crime established in the first point. To the behaviors punished in such first point, are added the avoidance of the payment of any amount which must be deposited or the undue enjoyment of a benefit legally obtained. Nevertheless, there is a big difference with respect to the crime of the first point, this time the damage is caused to the European Union´s Treasury and it is enough with defrauding more than 100.000 euros during a natural year.
Let us make an effort, briefly mentioning its more important characteristics:
– It is a special own crime, of infringement of duty and of result.
– It is a blank criminal law provision, which must be completed with the rest of the applicable legislation.
– The damage to the European Union´s Treasury, may be the result of an active or omissive behavior.
– It is a malicious crime, which is possible to commit through eventual malice, but not through imprudence.
– The crime is consummated when the defrauded amount exceeds the 100.000 euros in a natural year or as soon as it is reached this amount when the fraud is committed within a criminal group or organization, or be persons or entities which act under the appearance of a real economic activity without effectively developing it.
– The legal good protected is the European Union´s patrimony or its economic interests or the principles of tax solidarity.
Article 305.4:
We have not said anything at the beginning, but at the end of the first paragraph of the article 305, we find a specific cause of exemption of penal liability for the crime of fraud of the Public Treasury, the active subject must have “regularized its tax situation in the terms of the point fourth of the present article.” Later, this exemption is not mentioned for the crime of fraud of the European´s Treasury of its third point, though we should understand that due to the similarities between both precepts, it should be also applicable.
Indeed, this is the object of this fourth point, to establish when the tax situation of the tax debtor is regularized. Broadly speaking, a tax situation is regularized when the tax debtor has wholly recognized and paid his tax debt, before the Tax Administration or a penal proceeding begins an investigation for determining the tax debt.
Something that draws our attention, is the stated by the third paragraph of this fourth point, the regularization of the tax situation not only is going to exempt the active subject of his penal liability with respect to the crime of fraud of the Public Treasury, it is going also to “impede his persecution for the possible accounting irregularities or other documentary falsifications that, exclusively in relation with the tax debt object of regularization, he might have committed with previous character to the regularization of his tax situation.” For example, the crime of fraud of the Public Treasury can be committed along a crime of forgery of commercial documents (art. 392.1 CP), as it is usually the case, existing between both a relation of medial concurrence of crimes (art. 77.1 CP), in which the forgery of documents is the means to commit the fraud to the Public Treasury. Hence, in these cases, the regularization by the active subject of his tax situation is going to suppose that, he is not going to be penally liable for either of them.
Article 305.5:
In the fifth point of the article 305, is established the possibility that the Tax Administration calculates separately, on the one hand the concepts and amounts which are not linked with the crime of fraud of the Public Treasury, and on the other hand, those which are linked, whenever, previously, it has been appreciated evidences of a crime against the Public Treasury.
The separation of both concepts and amounts, is going to affect also to their proceeding, thus, the former follow the rules of the ordinary proceeding and is subjected to the appeal system of all tax calculation, while the latter follow the proceeding expressly established for them in the tax regulation, without prejudice that later it is adjusted to the decided in the penal proceeding, affecting the decided in the penal proceeding to the administrative.
Besides, the existence of the criminal proceeding does not bring the collection action to a halt, since the Tax Administration may begin the necessary proceedings for its collection. However, the judge in charge of the penal proceeding may order the suspension of the collection, if previously is given a guarantee by the tax debtor. And even, he is going to be able to order the suspension of the collection without guarantee, if he appreciates that this will cause irreparable damages or very difficult reparation.
Article 305.6:
If previously, we consider that the fourth point establishes a penal exemption for the cases in which the tax debtor regularizes his tax situation, according to the criterions established in this point, mainly, to recognize and pay the debt before the Tax Administration or a penal proceeding begins an investigation to clarify whether a crime has been committed. In this sixth point, what we find is an attenuating factor, since it allows to the Judges and Courts to impose an inferior punishment in one or two degrees, whenever, the tax debtor satisfies the tax debt and judicially recognizes the facts before two months have elapsed since the moment he was summoned as imputed.
Here we must remember, that the adequate criminal proceeding to judge the facts is the Abbreviated Procedure of the Spanish Criminal Procedure Act (LECrim), since this crime is punished with an imprisonment which does not exceed the nine years (art. 757 LECrim). In this procedure, the Examining Magistrate is obliged to take a statement to the imputed before ordering the continuation of the procedure according to the rules of the Abbreviated Procedure (art. 775 LECrim and art. 779.1.4º LECrim), hence, the investigation stage of the proceeding cannot conclude without first having been informed the suspect of the facts imputed to him and having taking part in the investigation by himself, proposing proofs and giving testimony. This is the moment in the procedure, when the alleged author of the crime is summoned to declare as imputed, when this sixth point gives him two months for satisfying the tax debt and judicially recognizing the facts, otherwise the judge or court in charge of the case will not be able to impose an inferior punishment in one or two degrees.
We see too, how the legislator rewards the regretful tax debtor differently depending on the moment in which this remorse takes place. If he regularizes his debt before the Tax Administration or a penal proceeding begins an investigation against him, he will be fully forgiven, on the contrary, if he waits until a penal proceeding begins to clarify his participation into a crime, and as such he is summoned as imputed during this stage of investigation, he will not be able to obtain the forgiveness for defrauding the Public Treasury, he will need to conform himself with a reduction in the punishment, a possibility which will be entirely loss if within these two months he does not recognize his guilt and satisfy his debt.
The opportunity of obtaining a reduction in the punishment, is also extended by this sixth point to other participants in the crime different from the tax debtor or the author of the crime, when they actively collaborate with the justice. Remember, that the necessary collaborators and the instigators are authors too (art. 28 CP), and in a lesser degree, the accomplices will also respond for their participation in the facts, when they have contributed to their realization with something not essential, but which has eased the damaging result.
Article 305.7:
The execution of the punishment of fine and of civil liability (including the amount of tax debt which the Tax Administration had not included for prescription or another legal cause and default interests), according to this seventh point, will be subjected to rules of the administrative enforcement procedure of the LGT.
– Article 305 bis:
In the article 305 bis, we find an aggravated subtype of the previous article 305, for the punishment established in the latter are sharply increased when any of the circumstances mentioned in the former are met.
The article 305 bis says:
“Article 305 bis.
1. The crime against the Public Treasury shall be punished with the punishment of imprisonment from two to six years and fine from two times to six times of the defrauded amount when the fraud has been committed concurring any of the following circumstances:
a) That the defrauded amount exceeds six hundred thousand euros.
b) That the fraud has been committed within a criminal group or organization.
c) That the utilization of natural or legal persons or entities without legal personality, business or fiduciary instruments or tax heavens or tax haven jurisdictions conceals or hinders the determination of the identity of the tax debtor or of the person liable of the crime, the determination of the defrauded amount or the tax debtor´s or person liable of the crime´s patrimony.
2. To the scenarios described in the present article shall be applicable the rest of the provisions of the article 305.
In these cases, besides the punishments established, shall be imposed to the person liable the loss of the possibility of obtaining subventions or government aids and of the right of enjoying the benefits and tax incentives or of the Social Security from four to eight years.”
The first of these causes takes into account the defrauded amount, it must exceed the 600.000 euros, the second the danger involving the facts when the fraud has been committed within a criminal group or organization, and the third, the use of complex schemes in order to hinder the investigation of the crime.
Of three causes, the third deserves some explanations, when the crime is committed withing a criminal group or organization. We find the definition of criminal organization in the article 570 bis: “For the purpose of this Code it is understood by criminal organization the group formed by more than two persons with stable character or for an indefinite period, which in an agreed and coordinated way allots different tasks and functions with the aim of committing crimes.”
Here, we should resolve a problem, for the pertaining to a criminal organization is already punished independently in the articles 570 bis and 570 ter. Two articles cannot be used for punishing the same behavior, it would infringe the principle non bis in idem, according to which, a subject cannot be punished two times for the same facts. How do we solve this problem? We find the solution in the second paragraph of the second point of the article 570 quarter, which establishes that in any case, when the behaviors established in these articles are included into another precept of the CP, it is going to be of application the established in the fourth rule of the article 8, the criterion of alternativity.
Besides that, this aggravated subtype is not different from the one from which it derives, it is still a special own crime, of infringement of duty, of result, malicious, and where the legal good protected is the Public Treasury´s patrimony or economic interest. In fact, this precept 5605 bis is clear stating that, the rest of provisions of the article 505 are applicable, like the exemption for regularizing the tax debt or the attenuating factor when it is judicially recognized and satisfied the tax debt within two months since the tax debtor is summoned as imputed.
– Article 306:
Let us first see the content of the article 306:
“Article 306.
Whoever by action or omission defrauds the general budgets of the European Union or others administered by this, by an amount greater than fifty thousand euros, eluding, out of the cases contemplated in the point 3 of the article 305, the payment of amounts which must be deposited or, giving, out of the cases contemplated in the article 308, to the funds obtained a different application to that to which they were destined or unduly obtaining funds falsifying the conditions required for their concession or hiding those which would have impede it, shall be punished with the punishment of imprisonment from one to five years and fine up to six times the cited amount and the loss of the possibility of obtaining subventions or government aids and the right to enjoy the benefits or tax incentives or of the Social Security from three to six years.
If the defrauded amount or unduly applied does not exceed the fifty thousand euros, but exceeds the four thousand, shall be imposed a punishment of imprisonment from three months to one year or fine up to three times the cited amount and the loss of the possibility of obtaining subventions or government aids and the right to enjoy the benefits or tax incentives or of the Social Security during a period from six months to two years.”
Like we are able to observe, it is an article formed by two paragraphs, being the second an attenuated subtype of the first, due to the lesser importance of the defrauded amount.
Beginning with the first of these paragraphs, let us analyze the objective elements of the type. For me, the core of the action consists in defrauding the general budgets of the European Union or others administered by it. Like in the case of the article 305, the fraud can be carried out by action or omission, hence, we can dismiss that only an active behavior of the active subject will fulfill the objective elements of the type, to put it differently, it is not going to be necessary enough deception to deceive the administration like in the swindle. Although, for me the core of the action is the act of defrauding, we cannot forget that, like before with the article 305, this is equivalent to the damage suffered, in this case by the European Union´s general budgets, being penally punishable those behaviors which cause a damage of more than 50.000 euros, therefore, this is a crime of result.
Afterwards, the article 306 enumerates the ways in which can be defrauded the European Union´s general budgets, “…eluding, out of the cases contemplated in the point 3 of the article 305, the payment of amounts which must be deposited or, giving, out of the cases contemplated in the article 308, to the funds obtained a different application to that to which they were destined or unduly obtaining funds falsifying the conditions required for their concession or hiding those which would have impede it…”
If we pay attention, we also see how the fraudulent behavior of this article 306 is subsidiary with respect to the established in the point 3 of the article 305 and of the article 308, since it is only applicable in the cases in which we cannot punish the behavior with such articles.
Let us now talk about the subjective elements of the type. This is a malicious crime, which should comprehend the cases of eventual malice, avoiding difficulties when the behavior analyzed is omissive, in which sometimes is difficult to identify the malice.
In the second paragraph of this article, we find an attenuated subtype of the previous paragraph, the punishments decrease as much as the amount demanded by the legislator in order to consider the behavior as a penal illicit, in this case, the result, the damage suffered by the European Union´s general budgets must not exceed the 50.000 euros.
– Article 307:
In the article 307, we find a crime which is very similar to the crime of fraud of the Public Treasury of the article 305, with the difference that this time the administration defrauded is the Social Security, and the concepts of fraud also vary. The article 307 says:
“Article 307.
1. Whoever, by action or omission, defrauds the Social Security eluding the installment payments and the concepts of joint collection, unduly obtaining refunds or enjoying deductions by any concept likewise in an undue way, whenever the amount of the defrauded installments or of the undue refunds or deductions exceeds the fifty thousand euros shall be punished with the punishment of imprisonment from one to five years and fine up to six times the cited amount save when he has regularized his situation before the Social Security in the terms of the point 3 of the present article.
The mere presentation of the documents of contribution does not exclude the fraud, when this is accredited by other means.
Besides the punishments established, shall be imposed to the person liable the loss of the possibility of obtaining subventions or government aids and the right to enjoy benefits and tax incentives or of the Social Security for a period from three to six years.
2. For the purpose of determining the amount mentioned in the previous point shall be taken into account the total amount defrauded during four natural years.
3. The situation before the Social Security shall be understood regularized when the tax debtor has proceeded to the whole recognition and payment of the debt before having been notified the beginning of investigations aimed at determining such debts or, in the case that such acts had not taken place, before the Public Prosecution or the Social Security Lawyer files a complaint or report against him, or before the Public Prosecution or the Examining Magistrate carry out any act which allows him to have formal knowledge of the beginning of the investigation.
Likewise, the effects of the regularization established in the previous paragraph, shall be applicable when the Social Security debts are satisfied once prescribed the right of the Administration to determine them administratively.
The regularization of the situation before the Social Security shall impede the persecution of such subject for the possible financial irregularities or other instrumental falsehoods which, exclusively in relation with the debt object of regularization, he might have committed with previous character to the regularization of his situation.
4. The existence of a penal proceeding for a crime against the Social Security shall not bring the administrative proceeding to the settlement and collection of a debt with the Social Security to a halt, save when the Judge agrees it in exchange of a guarantee. In the case that it is not possible to provide a guarantee in whole or in part, the Judge, may agree the suspension with total or partial dispensation of the guarantees, in the case that he appreciates that the execution may cause irreparable damages or of very difficult reparation. The administrative settlement shall adjust itself to the decided in the penal proceeding.
5. The judges and Courts may impose to the social security debtor or author of the crime against the Social Security the punishment inferior in one or two degrees, whenever, before two months have elapsed since the summons as imputed, he has satisfied the debt with the Social Security and judicially recognized the facts. These shall be also applicable regarding other participants different from the social security debtor or the author of the crime, when they actively collaborate with obtaining decisive proofs in order to identify and capture other persons liable, the whole clarification of the criminal facts or find out the patrimony of the social security debtor or of other persons liable of the crime.
6. In the proceedings for the crime contemplated in this article, for the execution of the punishment of fine and the civil liability, which shall comprehend the amount of the debt against the Social Security that the Administration has not settled for prescription or another legal cause, including the default interests, the Judges and Courts shall obtain the help of the Administration of the Social Security which shall demand them by the administrative enforcement procedure.”
Article 307.1:
Let us try to analyze its content with detail, beginning, as it is logical, from its first point. This first point begins with, “Whoever, by action or omission, defrauds the Social Security…”. Therefore, the active subject must be someone who has some kind of relation with the Social Security in order to be able to defraud it, to put it differently, the person who has to fulfill his obligation of paying the Social Security, who usually is going to be the businessman, who according to the General Law of the Social Security has to pay his own contributions and those pertaining to his workers. This is what the article 104.1 of the Social Security Law says: “The businessman is subject responsible of the fulfillment of the obligation of contribution and shall pay the his owns and those of his workers in their totality.”
The next thing that we find, is the core of the typical action, which consists in “…by action or omission…” to defraud the Social Security. Here again, there have been some problems regarding the nature of the act of defrauding, and the result, in my opinion, is again the same. To defraud, implies some deceptive maneuver, at least of concealment of the obligation to contribute with the Social Security, in other words, the active subject must act with fraudulent intent. Evidently, the fraud derives from an active behavior, is much easier to distinguish the fraudulent intent in the active subject, but it is more complicated to appreciate it in an omissive behavior. In this sense, it has been said that the mere non-payment of the Social Security´s installments does fulfill all the elements of the type, since there must be also an intention of hiding the obligation to contribute to the Social Security, having been regarded as enough in these cases, the concurrence of the eventual malice, which takes place when the active subject knows that probably his behavior is going to fulfil the elements of the type. Let us read now some excerpts from Courts´ resolutions for the sake of clarifying the said:
Spanish Provincial Court of Barcelona´s sentence number 2077/2023:
“In any event, both verbs, to defraud and elude, carry us to the idea that it has to be done something more than the mere non-payment in order that this crime of the article 307 may be committed (by action or omission), at least some maneuver of concealment which may spoil the labor of inspection of the services of the Social Security.”
The simple non-payment of the business contribution or of the proportional part of the worker installment corresponding to the businessman lacks any penal relevance. The objective and subjective elements are also necessary, thus being essential the fraudulent intent. We understand that this is the criterion of the Sentences from the Spanish Supreme Court of 5 October 2017 and 11 December 2018 (Deponent, Mr. Palomo del Arco).
Spanish Provincial Court of Lugo´s sentence number 708/2023: “According to reiterated jurisprudence of this Chamber, it is not punished the mere omission of the declaration nor the simple non-payment, understood this as omission of the material deposit of the money, when there has been a truthful declaration. The type demands a fraudulent intent, mendacious, of concealment of the taxable amount or of fiction about refunds or deducible expenses. Either the lack of fulfilment of the duty of payment of the contributions or the fraudulent behavior are the typical requisites for the concurrence of the type of evasion of the payment of the Social Security´s installments. This chamber has established this in numerous occasions, like in the Spanish Supreme Court´s sentence number 133/2004, of 19 November, where there is a complete analysis of the concept of fraud.”
Later the precept continues, and says “…eluding the installment payments and the concepts of joint collection, unduly obtaining refunds or enjoying deductions by any concept likewise in an undue way, whenever the amount of the defrauded installments or of the undue refunds or deductions exceeds the fifty thousand euros…”. As we can see, it is specified the ways in which the active subject may defraud by action or omission. The most important is that, the fraud must exceed the 50.000 euros, otherwise it is going to be only an administrative infringement.
On the other hand, it is a malicious crime, the active subject must want to carry out the fraud, as we already saw, there must be fraudulent intent. If for the crime of fraud of the Public Treasury it has been admitted the eventual malice, there should not be any inconvenient to apply the same criterion here as well.
We have not forgotten the legal good protected by the norm. The article 41 of the Spanish Constitution obliges “the public powers to maintain a social security for all the citizens which guarantees the enough assistance and aids in situations of necessity.” Consequently, the legal good protected is the collecting function necessary for integrating the patrimony of the Social Security.
Article 307.2:
In this second point, the legislator determines the period in which the amount can be reached that is regarded as typical, which is 50.000 euros. He gives four years. This means that, if the fraud or frauds exceed the 50.000 euros, but not in four natural years, but in a longer period, the behavior will not be penally punishable, although the they are still considered an administrative infringement. But, what happens if the threshold marked by the law is reached before these four years? Then, the penal illicit is consummated before, because all the elements of the type are going to be fulfilled before the temporal limit marked by the law has elapsed. Pay attention to this sentence from the Spanish National High Court: “It does not mean that the legislator has wanted to establish a period of four years for understanding the crime consummated, but if in a shorter period is already exceeded the amount defrauded of 50.000 or 120.000 euros, the crime will be already committed, because all the elements of the type are going to be fulfilled and with them the objective condition of punishability.”
Article 307.3:
In this point, is offered the possibility to the active subject of regularizing its situation before the Social Security, hence, if he refunds the amount defrauded, if he repairs the damage caused to the Social Security, before this or a penal proceeding begins an investigation against him in order to find out the possible evidences which confirm the crime, he will be exempted from any penal liability. In short, the article 307.3 contains an absolutory excuse.
Besides, the absolutory effects of the regularization are extended to the possible accounting irregularities or other instrumental falsehoods which have been committed in relation with the debt object of regularization. For example, the crime of fraud to the Social Security could be preceded of a crime of forgery of commercial documents (art. 392.1 CP), existing between both a relation of medial concurrence of crimes (art. 77.1 CP). Thus, in these cases, the regularization of the debt with the Social Security by the active subject, will exempt him of penally responding for both crimes.
Article 307.4:
According to this fourth point, the existence of a penal proceeding for a crime of fraud of the Social Security does not stop an administrative proceeding for settling and collecting the debt with the Social Security, save when the Judge in charge of the criminal proceeding agrees this in exchange of a guarantee. The guarantee can be dispensed, when the Judge considers that the settlement and collection of the debt in the administrative proceeding may cause a damage of difficult or impossible reparation. In any event, the administrative settlement must be adjusted to the decided in the penal proceeding, what shows the primacy of the penal proceeding over the administrative.
Article 307.5:
If in the third point, we stated that this is an absolutory excuse, when the active subject regularizes his debt before a proceeding begins to find out whether it exists, in this fifth point what we find is an attenuating factor. The debtor is not wholly forgiven, but the punishment is going to be reduce in one or two degrees, whenever he judicially recognizes the facts and satisfies the debt, within two months since he was judicially summoned as imputed.
This attenuating factor, is also applicable to the rest of participants in the crime different from the debtor of the Social Security or the author of the crime, when they actively collaborate with the justice to clarify the facts. Remember, that authors of a crime are also considered the necessary cooperators and the instigators, while the accomplices can be punished by their not essential contribution to the facts.
Article 307.6:
According to this point, in the proceedings for the crime contemplated in this article, for the execution of the punishment of fine and the civil liability, including the amount of the debt with the Social Security which the Administration has not settled by prescription or another legal cause and the default interests, is going to be used the administrative enforcement procedure.
– Article 307 bis:
Like before with the article 305 and the article 305 bis, in the article 307 bis is established an aggravated subtype of the article 307. The latter´s punishments are increased whenever any of the former´s circumstances are met. The article 307 bis says:
“Article 307 bis.
1. The crime against the Social Security shall be punished with the punishment of imprisonment from two to six years and fine from two times to six times of the amount when in the commission of the crime any of the following circumstances concur:
a) That the amount of the defrauded instalments or of the undue refunds or deductions exceed the one hundred twenty thousand euros.
b) That the fraud has been committed within a criminal group or organization.
c) That the utilization of natural or legal persons or entities without legal personality, business or fiduciary instruments or tax heavens or tax haven jurisdictions conceals or hinders the determination of the identity of the tax debtor or of the person liable of the crime, the determination of the defrauded amount or the Social Security debtor´s or person liable of the crime´s patrimony.
2. To the cases described in the present article are applicable the rest of the provisions contemplated in the article 307.
3. In these cases, besides the punishments established, shall be imposed to the person liable the loss of the possibility of obtaining subventions or government aids and of the right of enjoying benefits or tax incentives or of the Social Security during a period from four to eight years.”
As we saw, to the article 307 are applicable the rest of the article 307´s provisions, only changing the punishments and the circumstances which motivate the increase.
Like with the article 305 bis, of these three circumstances we should explain a little more the third, since this behavior is already punished independently in other precepts of the CP (art. 570 bis and art. 570 ter). According to the article 570 quater, when the behaviors established in these precepts are comprehended within another precept of the CP, it is going to be of application the established in the fourth rule of the article 8 CP, the criterion of alternativity.
– Article 307 ter:
In the article 307 ter, we have a special kind of fraud to the Social Security which is not mentioned in the ways of commission of the crime which expressly appear in the article 307. In it, is punished the obtention of benefits from the Social Security´s system, or their extension by means of provoked error to the administration in charge or granting them. It was introduced by the CP by the Organic Law 7/2012, of 27 December. With this reform was classified for the first time and in an autonomous way this kind of fraud to the Social Security, which until this moment had been punished as fraud of subvention (article 308 CP) and of swindle (article 248 CP), depending of the nature of the benefit obtained (unemployment benefit, retirement pension, survivor´s pension…). Concretely, the article 307 ter says:
“Article 307 ter.
1. Whoever obtains, for himself or another person, the enjoyment of benefits from the Social Security´s System, the undue extension of it, or makes easier to others their obtention, by means of provoked error through the simulation or distortion of facts, or the conscious concealment of facts of which he had the duty to inform, causing with this a damage to the Public Administration, shall be punished with the punishment of imprisonment from six months to three years.
When the facts, taking into account the defrauded amount, the means employed and the personal circumstances of the author do not have a special gravity, shall be punished with the punishment of fine up to six times the amount defrauded.
Besides, the punishments established, shall be imposed on the person liable the loss of the possibility to obtain subventions and of the right to enjoy benefits or tax incentives or of the Social Security during a period from three to six years.
2. When the value of the benefits is greater than fifty thousand euros or any of the circumstances to which are referred the letters b) or c) of the point 1 of the article 307 bis have concurred, shall be imposed a punishment of imprisonment from two to six years and fine up to six times the amount defrauded.
In these cases, besides the punishments established, shall be imposed to the person liable the loss of the possibility of obtaining subventions and the right to enjoy the benefits and tax incentives or of the Social Security during a period from four to eight years.
3. Shall be exempted from criminal liability in relation with the behaviors described in the previous points whoever refunds a quantity equivalent to the value of the benefit received incremented by an annual interest equivalent to the legal interest of the money increased in two percentage points, from the moment he received them, before he is notified with the beginning of acts of inspection and control in relation with them or, in the case that such acts have not taken place, before the Public Accusation, the State´s Lawyer, the Social Security´s Lawyer, or the representative of regional or local administration, files a complaint or report against him or before the Public Prosecution of the Examining Magistrate carry out acts which allow him to take formal knowledge of the beginning of the investigation.
The exemption of penal liability contemplated in the previous paragraph will reach such subject for the possible instrumental falsehoods which, exclusively in relation with the defrauded benefits object of refund, he could have committed with previous character to the regularization of his situation.
4. The existence of a penal proceeding for any of the crimes of the points 1 or 2 of this article, shall not impede that the competent administration demands the administrative refund of the benefits unduly obtained. The amount which must be refunded shall be understood provisionally set by the Administration, and adjusted to the finally resolved in the penal proceeding.
The penal proceeding shall not bring the action of collection of the competent administration to a halt either, which may begin the acts aimed at collecting save that the Judge, ex officio or at the request of a party, had ordered the suspension of the acts of execution provided that a guarantee had been previously granted. If a guarantee cannot be wholly or in part provided, exceptionally the Judge may agree the suspension with total or partial dispensation of guarantees if he appreciates that the execution may cause irreparable or of very difficult reparation damages.
5. In the procedures for a crime contemplated in this article, for the execution of the punishment of fine and of the civil liability, the Judges and Courts shall obtain the help of the services of the Social Security´s Administration which shall demand them by the administrative enforcement procedure.
6. Shall be applicable to the cases regulated in this article the established in the point 5 of the article 307 of the Penal Code.”
Article 307.1 ter:
Let us start analyzing the first of the points, where we find the basic type. This begins with, “Whoever obtains, for himself or another person, the enjoyment of benefits from the Social Security´s System, the undue extension of it, or makes easier to others their obtention…”. The first thing that we know, is who can be the active subject of the crime, being possible to be anyone, since he is not a tax debtor, it is not demanded either any other special quality, as for example any depending on a profession or job. This is, therefore, a common crime.
We continue reading, and the next thing that we find is the typical behavior, which can be carried out in three different ways: 1) The obtaining of the enjoyment of benefits from the Social Security´s System; 2) Its undue extension, or; 3) To make easier to others their obtention.
The precept continues, “… by means of provoked error through the simulation or distortion of facts, or the conscious concealment of facts of which he had the duty to inform, causing with this a damage to the Public Administration…”. Here, we have the commissive means of the crime which can be two: 1) by means of provoked error through the simulation or distortion of facts, or; 2) or consciously concealing the facts which he has the duty to inform. The first implies activity by the active subject, existing a great similarity with the common crime of swindle (art. 248 and following), for it demands to provoke an error in the administration through the simulation or distortion of facts, obtaining in this way the asset displacement which damages this. The second is an omission, in which the active subject abstains himself from carrying out an activity to which is obliged by law, in this case, consciously concealing facts of which he has the duty to inform. This scenario, is really similar to the omission of the crime of fraud to the Public Treasury of the article 305 and to the omission of the crime of fraud to the Social Security of the article 307.
Another important aspect that is reflected, is the necessity of causing a damage to the administration, as an objective element of the type, what implies that this is a crime of result, without a damage to the administration, there is no crime. A question, which unavoidably carries us to talk about the moment in which the crime is consummated. In order to resolve it, let us read this excerpt from the Spanish Provincial Court of Malaga´s sentence number 2830/2023: “The doctrine was divided, maintaining each author three opposed thesis which defended three different moments of consummation of the crime:
1ª- Considered that the crime is consummated the date in which the resolution of granting of the benefit is obtained.
2ª- Understood that the consummation is produced in the moment in which is earned the first monthly amount of the benefit.
3ª- Defended that the crime is only consummated when the benefit is not earned anymore because it is a permanent crime.
Thus, departing from the fact that the crime classified in the article 307 ter CP is a crime of result in which the patrimonial damage of the Social Security is produced during a long period of time, hence, the crime is understood consummated when the benefit is not earned anymore, beginning at this moment the period of prescription.
Thus, such interpretation has been corroborated by the jurisprudential doctrine of the Spanish Supreme Court which has treated the question which is posited here (Spanish Supreme Court´s sentence number 150/2020, of 18 May.”
Having finished the objective elements of the type, we should pass to the subjective. Since the type does not say expressly the contrary, this is a pure malicious crime which cannot be committed by imprudence (art. 12 CP). A different question is, whether it is possible to commit it through eventual malice, and in my opinion, there should be no problem, for it is something that is already admitted in the crime of fraud of the Public Treasury, and there exists a great similarity between both precepts. Therefore, it is going to be enough with having recognized the active subject the high probability that his behavior will fulfill the elements of the type, comprehending those omissive behaviors in which the malice is not easily identified.
Regarding the legal good protected, it is the Social Security´s patrimony.
In the same point, in its second paragraph, it is established an inferior punishment, a fine instead of imprisonment, when attending to the amount defrauded, of the means employed and of the personal circumstances of the author, the crime does not have a special gravity. In any event, it is not established any additional criterion in such precept for its application, this means that at the end the judges and courts trying the case are going to have the last word regarding whether to consider or not of special gravity the facts.
Article 307.2 ter:
Pay attention to the fact that, while the crimes of fraud of the Public Treasury (art. 305 CP) and of fraud of the Social Security (art. 307 CP), the establishment of a minimum serves to distinguish between the mere administrative infringement from the penal illicit, in the crime of fraud of the Social Security´s benefits has the function of differentiating the basic type from the aggravated. When the value of the benefits defrauded surpasses the 50.000 euros, or any of the circumstances mentioned in the letters b) or c) of the point 1 of the article 307 bis concur, it is going to be imposed from two to six years and a fine up to six times the amount defrauded. The punishment of the loss of the possibility to obtain subventions or the right to enjoy benefits or tax incentives or of the Social Security is also increased, in this case it is from four to eight years.
– Article 307.3 ter:
This crime of fraud of benefits of the Social Security has also an absolutory excuse in its third point. According to this precept, “Shall be exempted from criminal liability … whoever refunds a quantity equivalent to the value of the benefit received incremented by an annual interest equivalent to the legal interest of the money increased in two percentage points, from the moment he received them, before he is notified with the beginning of acts of inspection and control in relation with them or, in the case that such acts have not taken place, before the Public Accusation, the State´s Lawyer, the Social Security´s Lawyer, or the representative of regional or local administration, files a complaint or report against him or before the Public Prosecution of the Examining Magistrate carry out acts which allow him to take formal knowledge of the beginning of the investigation.”
The exemption of penal liability contemplated in the previous paragraph will reach such subject for the possible instrumental falsehoods which, exclusively in relation with the defrauded benefits object of refund, he could have committed with previous character to the regularization of his situation.
In this case, the exemption of penal liability also comprehends the possible instrumental falsehoods which, exclusively with the frauds object of refund, has been committed by the active subject. Here, again, it is common the example of the medial concurrence of crimes (art. 77.1 CP) between the crime of forgery of commercial documents (art. 392 CP), with the crime of fraud of benefits of the Social Security (art. 307 ter). Nevertheless, it is still recognized the primacy of the penal procedure over the administrative, for the amount which must be refund is only provisionally set by the administration, being later adjusted to the decided in the penal proceeding.
The existence of the penal proceeding does not bring the action of collection by the competent Administration to a halt, although the Judge ex officio or at the request of one of the parties may agree its suspension provided that previously is given a guarantee. However, if this guarantee could not be provided, the Judge would be able to agree the suspension when the execution may cause irreparable or of very difficult reparation damages.
Article 307.5 ter:
For the execution of the punishment of fine and civil liability, the Judges and Courts will obtain the help of the Social Security Administration, which will demand them through the administrative enforcement procedure.
Article 307.6 ter:
In the crime of fraud of the benefits of the Social Security, the Judges and Courts are also able to impose the punishment inferior in one or two degrees. But first, the active subject will have to judicially recognize the facts and refund to the Social Security the benefits unduly obtained, before two months have elapsed since he was summoned as imputed. Like before, the frontier between the absolutory excuse and the attenuating factor is the beginning of the criminal procedure.
– Article 308 CP:
In the article 308 is punished the obtaining of subventions or aids from the Public Administrations, including the European Union, when it is done defrauding the competent administration. The article 308 says:
“Article 308.
1. Whoever obtains subventions or aids from the Public Administrations, including the European Union, in a quantity or for a value of more than one hundred thousand euros falsifying the conditions required for their granting or concealing those which would have impede it shall be punished with the punishment of imprisonment from one to five years and fine up to six times their amount, save when it is carried out the refund to which is referred the point 6.
2. The same punishments shall be imposed to whoever, in the development of an activity wholly or in part paid with funds from the Public Administrations, including the European Union, applies them in an amount of more than one hundred thousand euros to aims different of those to which the subvention or the aid was granted, save when the refund to which is referred the point 6 is carried out.
3. Besides the punishments pointed out, shall be imposed to the person liable the loss of the possibility to obtain public subventions or aids and the right to enjoy benefits or tax incentives or of the Social Security during a period from three to six years.
4. If the amount obtained, defrauded or unduly applied does not exceed the one hundred thousand euros but exceeds the ten thousand, shall be imposed a punishment of imprisonment from three months to one year or fine up to three times the amount cited and the loss of the possibility to obtain public subventions or aids and the right to enjoy of the benefits or tax incentives or of the Social Security during a period from six months to two years, save when the refund to which is referred the points 6 has been carried out.
5. For the purpose of determining the amount to which is referred this article, it shall be attended to the total of the obtained, defrauded or unduly applied, irrespective of whether it comes from one or various Public Administrations jointly.
6. It shall be understood realized the refund to which are referred the points 1, 2, and 4 when the beneficiary of the subvention or aid proceeds to return the subventions or aids unduly received or applied, increased by the default interest applicable to subventions from the moment he received them, and carries out it before he has been notified the beginning of acts of verification or control in relation with those subventions or aids or, in the case that these actions have not been produced, before the Public Prosecution, the State´s Lawyer or the representative of the regional or local Administration, files a complaint or report against him or before the Public Prosecution or Examining Magistrate carries out acts which allow them to have formal knowledge or the beginning of the investigation. The refund shall impede the persecution of such subject for the possible instrumental falsehoods which, exclusively in relation with the debt object of regularization, he could have been committed before the regularization of his situation.
7. The existence of a penal procedure for some of the crimes of the points 1,2 and 4 of this article, shall not impede the competent Administration to demand administratively the subventions or aids unduly applied. The amount which must be reintegrated shall be understood provisionally set by the Administration, and adjusted later to the finally resolved in the penal proceeding.
The penal proceeding does not bring the collection action of the Administration to a halt either, which shall be able to begin the actions aimed to the collection save when the judge, ex officio or at the request of the parties, has agreed the suspension of the execution provided that a guarantee was given first. If a guarantee could not be wholly or in part given, exceptionally the judge may agree the suspension with total or partial dispensation of guarantees if he appreciates that the execution may cause irreparable or of very difficult reparation damages.
8. The judges and courts may impose to the person liable of the crime the punishment inferior in one or two degrees, whenever, before two months have elapsed since he was summoned as imputed, he carries out the refund to which is referred the point 6 and judicially recognizes the facts. This shall be also applicable to other participants in the crime different from the obliged to the refund or the author of the crime, when they actively collaborate for obtaining the decisive proofs for identifying or capturing other persons liable, for the complete clarification of the criminal facts or the finding out of the obliged´s or person liable of the crime´s patrimony.”
Article 308.1:
After reading it, let us analyze each of the points of which is made up. It starts, “1. Whoever obtains subventions or aids from the Public Administrations, including the European Union…”. We should understand, therefore, that the active subject can be anyone, since the type does not specify any previous relation between him and the administration, nor does it limit its application to a determined group of professions or jobs. Summing up, it is a common crime, at least, with regard to his active subject.
Let us continue with the typical behavior, for it is punished the obtaining of subventions or aids coming from the Public Administrations, including those of the European Union. Thus, the typical behavior is similar to the regulated in the article 307 ter, which punishes the obtaining of benefits of the Social Security.
Afterwards, this precept adds, “…in a quantity or for a value of more than one hundred thousand euros falsifying the conditions required for their granting or concealing those which would have impede it…”. By the amount required by the type, we already know that this is a crime of result, to put it differently, which requires to cause a damage equivalent to the threshold marked by the type. We continue, and evidently, not all obtaining of a subvention is a penal illicit when it reaches the amount marked by the type, only those which are obtained falsifying the conditions necessary for their obtaining or concealing the conditions which would have impede its granting are regarded as a penal illicit. In the former case, it is required an active behavior by the author of the facts, while in the latter is an omission, which must be equivalent to conceal.
Concerning the subjective elements, this is a malicious crime, which cannot be committed by imprudence (art. 12 CP). Though, we should not discard its commission by imprudence, above all in those cases in which there was an omission, a concealment of the causes which would have impeded the granting of the subvention, since in them it is more difficult to prove the existence of direct malice, but not of its eventual modality.
Lastly, the legal good protected by the norm, is the patrimony of the Public Administrations, including the European Union´s patrimony.
Article 308.2:
This point of the article 308 punishes an independent scenario from the established in its first point.
In this case, what is punished is the application of an amount exceeding the 100.000 euros, to an aim different from the one to which the subvention or aid was granted by the public Administration or the European Union.
It is also a common crime, or which can be committed by anyone, and of result, for the diversion of funds must exceed the 100.000 euros.
It is a malicious crime, in which the eventual malice should not be discarded either.
Again, the legal good protected by the precept is the public Administration’s patrimony, including the European Union´s patrimony.
Article 308.3:
Simply, through this point is added to the punishment of fine and of imprisonment of the previous two points, the loss of the possibility to obtain subventions or government aids and of the right to enjoy benefits or tax incentives or of the Social Security.
Article 308.4:
In the fourth point, we find an attenuated subtype of the crimes established in the first and second point. It is applicable, when “the amount obtained, defrauded or unduly applied does not exceed the one hundred thousand euros but exceeds the ten thousand”.
As attenuated subtype, the punishments of either imprisonment, or fine, or the loss of the possibility of obtaining subventions or public aids, are reduced.
The rest of the elements mentioned in the first and second point do not change.
Article 308.5:
In this precept is established the rule that, in order to determine the thresholds to which we referred before, we are going to attend to the whole of the obtained or unduly applied, irrespective of whether the subventions or funds come from one or various public Administrations.
Article 308.6:
In this point we find the absolutory excuse, which we already found in the crimes of fraud of the Public Treasury (art. 305 CP) and of the Social Security (art. 307 CP).
The beneficiary of the subventions and aids unduly obtained must return them increased by the default interest applicable to the subventions from the moment he received them, before the Administration or a penal proceeding begins an investigation against him.
Article 308.7:
This is other repeated precept. The existence of a penal proceeding for any of the crimes of the article 308, does not impede the competent Administration to demand administratively the refund of the subventions or aids unduly granted.
But the amount which must be refund, shall be provisionally set by the Administration, depending on the decided on the penal proceeding.
Again, the penal proceeding does not bring the action of collection of the administration to a halt, save when the Judge ex officio or at the request of the parties agrees the suspension of the execution provided that a guarantee is previously granted. The granting of a guarantee is not going to be necessary, when the judge agrees the suspension due to the high possibilities that the execution may cause an irreparable or of very difficult reparation damage.
Article 308.8:
Another point which is repeated in its essential content, with respect to those already studied before. It is an attenuating factor, which gives the option to the judge or court trying the facts of reducing the punishment in one or two degrees, when the active subject judicially recognizes the facts and compensates the damages caused to the affected administration or administrations in accordance with the said in the point sixth of this article, within two months since he was summoned as imputed.
The reduction in the punishment, is also applicable to other participants in the crime different from the author or obliged to the refund, when they actively collaborate with the justice. In this group we can include the necessary cooperators or the instigators, and the accomplices.
– Article 308 bis:
In the article 308 bis, are established additional rules to the contemplated in the article 80 CP, to obtain the suspension of the punishment for any of the crimes regulated in this Title. Besides, it is also something added in relation with the established in the article 125, concerning the satisfaction of the civil liability. The article 308 bis says:
“Article 308 bis.
1. The suspension of the execution of the punishments imposed for any of the crimes regulated in this Title shall be ruled by the dispositions contemplated in the Chapter III of the Title III of the Book I of this Code, completed by the following rules:
1ª The suspension of the execution of the imposed punishment of imprisonment shall require, besides the fulfilment of the requisites regulated in the article 80, that the convict has paid the tax or Social Security debt, or proceeded to the refund of the subventions or aids unduly received or utilized.
This requisite shall be understood fulfilled when the convict assumes the compromise of satisfying the tax debt, the Social Security debt or of proceeding to the refund of the subventions or aids unduly received or utilized and of the civil liabilities according to his economic capacity and of facilitating the seizure ordered, and it is reasonable to think that it is going to be fulfilled. The suspension shall not be granted when the convict has facilitated inaccurate or insufficient information about his patrimony.
The resolution by which the judge or court grants the suspension of the execution of the punishment shall be communicated to the procedural representation of the state, regional, local or foral Public Treasury, of the Social Security or of the Administration which has granted the subvention or aid.
2ª The judge or court shall revoke the suspension and order the execution of the punishment, besides in the cases of the article 86, when the convict does not fulfill his compromise of payment of the tax debt or with the Social Security, to the refund of the subventions or aids unduly received or utilized, or to the payment of the civil liabilities, whenever he has economic capacity for this, or facilitates inaccurate or insufficient information about his patrimony. In these cases, the prison oversight judge may deny the granting of the parole.
2. In the case of the article 125, the judge or court shall previously hear the procedural representation of the state, regional, local or foral Social Security or Administration which has granted the subvention or aid, in order to obtain information about the patrimony of the persons liable of the crime in which shall be analyzed the economic and real patrimonial capacity of the persons liable and which could include a proposal of fractionation according to such capacity and with the tax regulations, of the Social Security or the subventions.”
– Article 310:
The article 310 says:
“Article 310.
Shall be punished with the punishment of imprisonment from five to seven months whoever being obliged by the tax law to have business accounting, books or tax registers:
a) Does not fulfil completely such obligation in direct estimation regime of taxable bases.
b) Has different accounting records which, referring to the same activity and financial year, conceal or simulate the real situation of the company.
c) Has not annotated in the obligatory books business, acts, operations or, in general, economic transactions, or has annotated them with different amounts than the real ones.
d) Has practiced in the obligatory books fictitious accounting annotations.
The consideration as crime of the cases to which are referred the previous paragraphs c) and d), shall require that the tax declarations or that the presented are the reflection of his false accounting and that the amounts, in more or less, of the debits or credits omitted or falsified exceed, without arithmetical compensation between them, the 240.000 euros in each financial year.”
The first that we realize when we read the article is that, it is a special own crime, or which can be only committed by those obliged by the tax law to have business accounting, books or tax registers. In principle, those who are obliged to save this information are the businessman, for example, the Spanish Corporate Law establishes the obligation of the businessman to formulate annual financial statements (art. 253 LSC).
On the other hand, the typical behavior is of four types, although it can be divided in four groups, the first two can be considered crimes of mere activity, while the last two are crimes of result.
Regarding the subjective elements of the type, it is a malicious crime, but like before, we should not wholly dismiss the possibility of being committed through eventual malice.
The legal good protected, is the patrimony of the Public Treasury, since a distorted image of the business accounting will damage it.
We cannot deny that there is a great similarity between this precept and the article 290 CP. In both cases, broadly speaking, it is punished to distort the accounting of a company. But, there is an important different between them, which is linked with the legal good protected by them. In the case, of the corporate crime (art. 290 CP), the legal good protected is the corporate´s or partners´ patrimony, demanding the precept that the behavior must be suitable to cause an economic damage to the company, to some of its partners or to a third party.
It goes without saying, that the same behavior could not be punished two times by both precepts, since the principle non bis in idem would be infringed. A different question is, if a judge or court could convict for one of them, when the other was the requested by the accusation in its definitive writings, and in my opinion the answer is yes, for, at the end, what the jurisprudence has demanded is not homogeneity between the legal good protected by both precepts, but not to have generated defenselessness to the accused, in other words, he have to have got the opportunity of defending himself of each of the elements which form the type, of course, with the limit, that the judge or court can never convict with a punishment more severe than the requested by the accusation (art. 789.3 of the Spanish Criminal Procedural Act).
– Article 310 bis:
By virtue of the article 310 bis, a legal person can be liable for the crimes contemplated in this Title. The article 310 bis says:
“Article 310 bis.
When in accordance with the established in the article 31 bis a legal person is liable for the crimes of this Title, it is going to be punished with the following punishments:
a) Fine of up to two times the amount defrauded or unduly obtained, if the crime committed by the natural person has a punishment of imprisonment of more than two years.
b) Fine from two times to four times the amount defrauded or unduly obtained, if the crime committed by the natural person has a punishment of imprisonment of more than five years.
c) Fine from six months to one year, in the cases established in the article 310.
Besides the pointed out, the legal person shall be punished with the loss of the possibility of obtaining subventions or government aids and the right to enjoy of the benefits or tax incentives or of the Social Security during a period from three to six years.
The prohibition to contract with the Public Administrations may be imposed.
Attending to the rules established in the article 66 bis, the Judges and Courts may also impose the punishments of the letters b), c), e) and g) of the point 7 of the article 33.”
The Spanish Provincial Court of Madrid´s sentence number 7866/2023 is interesting, since it analyzes the penal liability of the administrators of a company (art. 31 CP), and of a legal person (art. 31 bis):
Natural person´s liability:
“Thought apparently the liability of the corporate representative seems objective by the mere fact of having the position of corporate representation, it is not the case. It is not enough with being administrator for receiving the transfer of this liability, because the confusion of the extension of the ambit of subject who can respond like authors with the rules of objective and subjective imputation of penal liability would provoke an unacceptable objective liability for the position, although it is not necessary either to be formally administrator in other to be able to receive it. To be administrator of a legal person is a characteristic which only makes him author of the possible crime when the typical shape of this demands a subject who has to have the features that only the legal person has.
…
In the end, if we want to demand penal liability to the administrator of a legal person, it is not enough with proving that he has this position, he also has to carry out an action or omission which contributes to the realization of the type by which he is being convicted or, in other words, he has to carry out some act of material execution which contributes to the typical result (Spanish Supreme Court´s sentence number 297/2005 of 7 March).”
Legal person´s liability:
“1. According to the reiterated jurisprudence -Spanish Supreme Court´s sentences number 514/2015, of 2 September, 234/2019, of 8 May and 949/2022, of 13 December, the penal liability of the legal persons is subjected to the following rules:
1º.- It is demanded a specific judgement of liability about the acts carried out by the legal person, based on the principle of autoliability.
2º.- The basis of the penal liability is not objective, but it has to be grounded on the own behavior of the legal person.
3º.- The principle of presumption of innocence is applied to the legal person and it is autonomous regarding the natural person.
4º.- The legal person acts without having a system of control of its administrators and employees aimed at controlling the fulfillment of the legislation, the legal system, or does not control the sources of danger of its activity. In the end, it does not observe the demands of control to which it is obliged. The penal punishment of the legal person has to be justified by the absence of adequate measures of control for avoiding the commission of crimes in the company or, like the Spanish Supreme Court´s sentence number 221/2016, of 16 March says, the basis of the penal liability of the legal person is grounded on “those organizing-structural elements which has made possible a deficit in the mechanisms of control and management, with decisive influence in the loosening of the preventive systems which avoid the criminality of the company.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com