“Crimes of corruption in the businesses”, is how is entitled the Fourth Section, of the Chapter XI, regarding the crimes relative to the intellectual and industrial property, the market and the consumers, of the Title XIII, about the crimes against the patrimony and the socioeconomic order, of the Book II, which contains the crimes and their punishments, of the Spanish Penal Code (CP).
It is a section which is made up of three articles: The article 286 bis, which punishes both the active corruption (to promise, offer or grant), and the passive corruption (to receive, request or accept), with the end of obtaining a preferential treatment by who sells merchandises or services, and those behaviors which has as aim to manipulate willingly the result of a proof, match or sports competition of special economic or sporting relevance; The article 286 ter, which punishes the active corruption of an authority or public servant in order to obtain or maintain a contract, or any other competitive advantage in the realization of international economic activities, and; The article 286 quarter, which allows the imposition of the punishment established in the previous two articles in their superior half, and even superior in degree, when any of the circumstances mentioned in it concur.
We are going to divide this work into two parts: An introduction, where we are going to talk about the origin of the precepts analyzed, and; And a point in which the articles are going to be commented.
– Introduction:
What now we know as crimes of corruption in the business (art. 286 bis and art. 286 ter), previously were two wholly different crimes, which were placed in wholly different parts of the CP.
The behaviors punished in the article 286 bis, are part of a crime of relative new creation, since it was introduced for the first time in the CP in the year 2010, through the reform carried out by the Organic Law 5/2010, of 22 June (LO 5/2010). Notwithstanding, the initiative to punish these behaviors did not come from the Spanish State, but from the European Union, of which it is part, concretely, the genesis of the crime of corruption in the business is found in the European Union´s Framework Decision 2003/568/JAI, which the member States were obliged to transpose to their legal system. Although, it is not a Regulation, and as such, this needs to be transposed, as the Directives, in order to acquire full efficacy within the legal system of each member state, this is obligatory in all its elements, and provides essential guidelines for interpreting the member State´s norm which incorporates it. As we already said, the behaviors punished by the article 286 bis, started to be illicit with the LO 5/2010, however, they had a different name “crime of corruption among private persons”, although they always have had the same article, the 286 bis, within the same Chapter XI, regarding the crimes relative to intellectual and industrial property, the market and the consumers. It is commonly accepted that, the behaviors which punishes the article 286 bis, constitute the crime of bribery in the public ambit.
The other crime, is the crime of corruption in the international transactions, currently regulated in the article 286 ter, but which before was in the article 445, with even its own chapter, along the rest of the crimes against the public administration, since it was introduced in the CP separately and before the crime of corruption among private persons, with the Organic Law 15/2003, of 25 November.
The current shape of the Fourth Section, is the consequence of another reform of the CP, this time through the Organic Law 1/2015, of 30 March, which made both precepts to share the same section, under the title “Crimes of corruption in the businesses”.
– Analysis of the articles:
Article 286 bis:
The article 286 bis, is formed by five points: In the first, we find the crime that the doctrine has denominated of passive corruption, and which consists in receiving, requesting or accepting an unjustified benefit or advantage of any nature; In the second, we have the other side of the coin, the crime of active corruption, and which consists in promising, offering or conceding an unjustified benefit or advantage; In the third, it is granted to the judge and courts the faculty of being able to impose the punishment inferior in degree and of reducing the fine; In the fourth, it is punished the crime known as sporting corruption, and; In the fifth, we find a definition of what we shall understand by corporation, for the purpose of this article.
Let us now see the exact content of the article 286 bis:
“Article 286 bis.
1. The manager, administrator, employee or collaborator of a commercial company or of a corporation whoever, by itself or intermediary, receives, requests or accepts an unjustified benefit or advantage of any nature, or offer or promise of obtaining it, for itself of for a third party, as consideration for unduly favoring another in the acquisition or sale of merchandises, or in the contracting of services or in the commercial relations, shall be punished with the punishment of imprisonment from six months to four years, special disqualification for exercising industry or commerce for a term from one to six years and fine of three folds the value of the benefit or advantage.
2. With the same punishments shall be punished whoever, by itself or intermediary, promises, offers or grants to managers, administrators, employees or collaborators of a commercial company or of a corporation, an unjustified benefit or advantage of any nature, for themselves or third parties, as consideration for being unduly favored itself or a third party against others in the acquisition or sale of merchandises, contracting of services or in the economic relations.
3. The judges and courts, attending to the amount of the benefit or the value of the advantage, and the importance of the functions of the culprit, may impose the punishment inferior in degree and reduce the fine to their prudent discretion.
4. The established in this article shall be applicable, in their respective cases, to the managers, administrators, employees or collaborators of a sporting entity, whatever the legal form of this, as well as to the sportmen, referees, judges, regarding those behaviors which has as goal to predetermine or alter in a deliberate and fraudulent way the result of a sporting proof, match or competition of special economic or sporting relevance.
In this sense, shall be considered sporting competition of special economic relevance, that in which the majority of its participants receive any type of remuneration, compensation or economic income for its participation in the activity; and sporting competition of special sporting relevance, that which is classified in the annual sporting calendar approved by the corresponding sporting federation as official competition of the maximum category in its modality, specialty, or discipline.
5. For the purpose of this article it is applicable the established in the article 297.”
Article 286.1:
Let us follow the logical order, starting with the first point of the article 286. We have already said, that this modality of corruption has been labelled by the doctrine as passive corruption, but we have not said much more, let us continue giving more details.
The first that we find reading the precept, is the active subject of the crime, which may be “The manager, administrator, employee or collaborator of a commercial company or a corporation”. We can consider as managers, those bound with the commercial company or corporation by a senior management contract, regulated by the Royal Decree 1382/1985, of 1 August, which in its article 1.2 says that, “Shall be regarded senior management those workers who exercise powers inherent to the legal ownership of the Company, and relative to the general objectives of it, with autonomy and full responsibility only limited by the criterions and direct guidelines coming from the persons or high organs of government and management of the Company that occupy that title.” The administrators, are the physical or legal persons appointed by the shareholders´ meeting, and who, besides fulfilling the functions assigned by the company´s bylaws, have its legal representation. An employee, are those who are bound with the commercial company or corporation by an employment contract, that is to say, those who are within the scope of application of the Workers´ statute, which according to its article 1.1. “This law shall be of application to the workers who willingly provide remunerated services on behalf of others and withing the ambit of organization and direction of other physical or legal person, denominated employer or businessman”. And lastly, a collaborator, are those bound with the commercial company or corporation, by any relation different to the above, like a commercial contract through which it provides a service.
Besides, the manager, administrator, employee or collaborator, has to have this position within a commercial company or corporation, in the sense of the article 297, which says, “it is understood by corporation all cooperative, savings bank, mutual savings bank, financial or credit institution, foundation, commercial company or any other entity of analogous nature which for the fulfillment of their ends permanently participates in the market.”
That the crime, in its modality of passive corruption, can only be committed by the persons indicated in the precept, transforms it into a special own crime.
The precept continues saying that the typical action can be committed either by the active subject or by an intermediary. According to the Dictionary of the Royal Academy of the Spanish Language, “an intermediary” is a “Person who, pretending to act on its own behalf, intervenes in a legal act on behalf of another.” In my opinion, that the precept expressly says “by itself or intermediary”, does not contribute much, beyond helping those who read it and do not know much law, since there exists an article 28 CP, where in general terms are established the rules of authorship.
If we continue reading, we see the scope of the typical behavior. It is punished, the manager, administrator, employee or collaborator of a commercial company or corporation, who “receives, requests or accepts an unjustified benefit or advantage of any nature, or offer or promise of obtaining it, for itself of for a third party, as consideration for unduly favoring another in the acquisition or sale of merchandises, or in the contracting of services or in the commercial relations.” Without entering to analyze the action in detail, for in my opinion it is clear, we do classify the crime as of mere activity or of cut result, since the type does not demand any result, in other words, in this case, for example, shall not be necessary for the consummation of the crime that another was unduly favored with the acquisition or sale of merchandise, such result would pertain to the stage of exhaustion of the crime.
Concerning the subjective type, this is a malicious crime, in which is going to be enough the existence of eventual malice, the knowledge by the active subject that its behavior may suppose the materialization of the subjective and objective elements of the type, in order to understand fulfilled the type. It is not possible its commission by imprudence, for it is no expressly mentioned by the precept as the article 12 of the CP demands, but besides, the typical behavior can never be committed by imprudence, since it would need the infringement of a duty of care imposed by a norm or social custom.
Lastly, although it should have been the first thing mentioned, due to its importance, the legal good protected by the norm is the free competence.
Article 286.2:
If in the first point we have what has been denominated passive corruption, in the second, we have the active corruption. Mainly, we are before the same behavior described in the first point, but this time, as we will see now, the manager, administrator, employee or collaborator of the commercial company or corporation, plays a passive paper, he is the bribed.
Let us make the same exercise that we made before, and let´s try to develop the said by the type. The first, is the active subject, it says “…whoever, by itself or intermediary…”, therefore, there exists no constraints regarding the person who can be author of the crime, unlike the first point which we classified as a special own crime. Here, like before, the general rules regarding authorship of the article 28 CP, are wholly applicable.
In this case is punished, whoever “…promises, offers or grants to managers, administrators, employees or collaborators of a commercial company or of a corporation, an unjustified benefit or advantage of any nature, for themselves or third parties, as consideration for being unduly favored itself or a third party against others in the acquisition or sale of merchandises, contracting of services or in the economic relations.” We see how in the active corruption, it is the manager, administrator, employee or collaborator who is corrupted, not who proposes being corrupted, like in the first point. Nevertheless, the nature of the crime is still the same, it is a crime of cut result or of mere activity, in which the type is consummated as soon as the typical behavior is carried out, without necessity that this behavior yields a wished result, in this case, the obtention of an advantage, thanks to the bribery, with respect to the rest of the competitors.
We are again before a malicious crime, being enough its eventual modality, in which is not possible its commission by imprudence.
The legal good protected by the norm, is the free competence.
Here, let us halt in our way. As we have been able to observe, and we have repeated in more than one occasion, in the first and second point of the article 286, is punished the passive and active corruption, respectively. If we pay attention to both behaviors, in my opinion, there can be the case in which should be punished for the same fact various subjects, ones for passive corruption and others for active corruption. Let us imagine the example of a manager who requests a consideration in exchange of favoring other company contracting its services, clearly, we are before a case of passive corruption, but besides, if the blackmailed company yielded to the bribery, it would be liable of a crime of active corruption, for granting an unjustified benefit or advantage. In any case, this is my personal opinion, and I do not have any practical example backing it. But I can add, that an infringement of the principle non bis in idem could never be alleged, since the same subject would not be punished two times for the same facts, it would be different subjects for different actions with regard to the same fact.
Article 286.3:
This point grants the possibility to judges and courts of imposing the punishment inferior in degree and of reducing the fine to their discretion. For this, they have to assess the amount of the benefit, and the importance of the functions of the culprit. Therefore, all seems to depend on a doble variable, the advantage or benefit requested or offered, and the importance of the culprit´s functions. It is not the same, that a manager requests a high amount in exchange of a favor, that he is perfectly able to do, that the same is done by a simple employee, for an amount much more inferior, and without knowing whether he is going to be able to fulfill his promise.
Another important aspect is that, either for its location or for its wording, the said by this third point is only applicable to the first and second point of the article 286, but not to its fourth.
Article 286.4:
In this fourth point, is punished the known as crime of sporting corruption. Let us repeat the same exercise of interpretation of the precept.
The first that it says is that, “The established in this article shall be applicable, in their respective cases…”. From which, we shall understand two things, that the behaviors punished are almost the same, the cases of active and passive corruption, and that these are punished with the same penalty.
We have said that the behaviors punished are almost the same, because undoubtedly, this fourth point has its particularities. Firstly, the active subject of the crime can be only the managers, administrators, employees or collaborators, but of a sporting entity, not of a commercial company or corporation like before, and besides, this precept adds others, the sportmen, referees and judges. Here careful, because in my opinion, we are dealing with a special own crime either in its modality of active corruption or of passive corruption. Let us see some examples:
1. A football club manager bribes a referee, to call any slight contact in the penalty area as a favorable penalty for their team: Here, the active subjects are two, the football club manager who bribes, for active corruption, and the referee who accepts to call the penalties, for passive corruption.
2. A private person, who is fond of betting, buys a goalkeeper in order to obtains its collaboration in the defeat of his team: The behavior of the private person is not punishable according to this fourth point, but the goalkeeper can be punished for passive corruption.
3. A private person, who is really fond of his football team, buys the boys who are in charge of returning the ball to the football field, they have to return the ball late, when his team is winning the match: Neither of them can be punished according to this fourth point, since neither of them can be an active subject, either in its modality of active corruption or passive corruption.
The other particularity is that, the punished behaviors have to have as end to “…predetermine or alter in a deliberate and fraudulent way the result of a sporting proof, match or competition of special economic or sporting relevance.” Remember, that before the advantage was not sporting, but commercial. Thereby, if before the legal good protected was the free competence, now it is the competitive spirit in the sports, otherwise, the competition would lose all its interest if from the beginning the winner was known.
Leaving behind the differences, we have to return to the similarities with the preceding crimes. The crime of sporting corruption, is a crime of cut result or mere activity, thereby, being consummated from the moment in which it is made the offer or the request of bribery, without being necessary that this bribery is reflected in the result of the sporting competition, this result will pertain to the exhausting stage of the crime.
Like before, this is a malicious crime, regardless of whether it is eventual malice, and which does not admit its commission by imprudence.
Lastly, we have to emphasize that, not all rigging of a sporting competition is punishable, only those of “special economic or sporting relevance.” Offering the second paragraph of this point fourth, a definition of what shall be understood as such.
Article 286.5:
As we saw before, this point refers us to the established in the article 297 CP, where is offered a definition of corporation, it says: “For the purpose of this chapter it is understood by corporation all cooperative, savings bank, mutual savings bank, financial or credit institution, foundation, commercial company or any other entity of analogous nature which for the fulfillment of their ends permanently participates in the market.”
Article 286 ter:
In the article 286 ter, we find the known as the crime of corruption in the international transactions.
Let us see first what the article 286 ter says, and later we are going to analyze it. This article says:
“Article 286 ter.
1. Whoever through the offer, promise or granting of any undue benefit or advantage, pecuniary or of any other class, corrupts or tries corrupt, by itself or intermediary, an authority or public servant in benefit of these or a third party, or attends their requests regarding this, with the aim that they act or abstain to act in relation with the exercise of their public functions for obtaining or maintaining a contract, business or any other competitive advantage in the realization of international economic activities, shall be punished, save when they are already punished with a severer punishment in other precept of this Code, with the punishments of imprisonment from three to six years, fine from twelve to twenty-four months, save when the benefit obtained is greater than the ensuing amount, in whose case the fine will be of threefold the amount of such benefit.
2. Besides the punishments established, shall be imposed in any case to the person liable the punishment of prohibition of contracting with the public sector, as well as the loss of the possibility of obtaining public subventions or helps and of the right of enjoying tax benefits or incentives and of the Social Security, and the prohibition of intervening in commercial transactions of public transcendence for a term from seven to twelve years.
2. For the purpose of this article it is understood by public servant the determined by the articles 24 and 427.”
Article 286.1 ter:
Let us make the exercise of carefully reading the article 286 ter. The first that it says is, “Whoever…”, therefore, we know that the crime may be committed by anyone, for the precept does not demand any special quality in the active subject.
We continue reading, and it says “…through the offer, promise or granting of any undue benefit or advantage, pecuniary or of any other class, corrupts or tries corrupt, by itself or intermediary, an authority or public servant in benefit of these or a third party, or attends their requests regarding this…”. Here, we have the typical behavior. The important: 1) The undue benefit or advantage may be pecuniary or of any other nature, the Spanish National High Court´s sentence number 5004/2023 says: “…in the OECD´s recommendations of 2006 it is stressed that the Spanish penal norm shall make clear that in the type are included either the pecuniary benefits or those of any other nature (favors of sexual nature, promises of decorations, etc.). The important and essential is that the benefit received by the public servant shall be undue and not necessarily illicit, this is, it does not have to be contrary to the law, it can be simply contrary to the agreed”. 2) It is a crime of mere activity or of cut result, since the type says clearly, “corrupts or tries to corrupt” and later “or attends their requests regarding this”, thus, the type does not demand a specific result, it is enough with carrying out the behavior described in it; 3) The offer, promise or granting shall be aimed at an authority or public servant, furthermore, I advance to you that it has to be a foreigner, and; 4) The benefit sought by the active subject can be for itself or a third party.
Let us continue reading, it later says “…with the aim that they act or abstain to act in relation with the exercise of their public functions for obtaining or maintaining a contract, business or any other competitive advantage in the realization of international economic activities…”. If before, we saw the typical behavior or objective elements of the type, now this is one of its subjective elements, it is not only required malice, at least eventual, besides, the active subject shall act with the intention that the authority or public servant acts or abstains to act in relation with the exercise of its public functions and this has to be, to obtain or maintain a contract, business or any other competitive advantage in the realization of international economic activities. Although, we have already said that this is a crime of cut result or mere activity, that the active subject shall seek an end with its behavior also indicates that this is a crime of tendency or anticipated consummation, that in the same ways, does not require the obtention of the sought result for understanding consummated the type.
That the sought competitive advantage shall be the realization of international economic activities, makes us affirm that the bribed authority or public servant has to be foreigner and that the legal good protected by the norm is the correct development in the international commercial traffic.
Finally, the article adds “…save when they are already punished with a severer punishment in other precept of this Code…”. In this way, is guaranteed a pacific coexistence between the crime of corruption in the international economic transactions and the crime of bribery.
Article 286.2 ter:
This point, simply refers us to the articles 24 and 427 of the CP, for comprehending the scope of the term public servant with regard to this article.
Article 286 quarter:
The article 286 quarter, does not have much mystery. It is only an aggravated subtype of the preceding articles, which impose to the judges and courts the obligation of imposing the punishment in its superior half, being able to reach the superior in degree, when any of the circumstances mentioned in it concurs.
The article 286 quarter says:
“Article 286 quarter:
If the facts to which are referred the articles of this Section are of special gravity, the punishment shall be imposed in its superior half, being possible to reach the superior in degree.
The facts shall be considered, in any case, of special gravity when:
a) the benefit or advantage has an especially high value.
b) the action of the author is not merely occasional.
c) they are facts committed within a criminal organization or group, or
d) the object of the business is about humanitarian goods or services or others essential.
In the case of the fourth point of the article 286 bis, the facts shall be regarded of special gravity too, when:
a) they have as end to have an influence in gambling or betting; or
b) they are committed in an official sport competition of statal ambit classified as professional or in an international sporting competition.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com