Analysis of the Crime of Private-Sector Corruption

Definition of the Crime

The crime of private-sector corruption is characterized by acts of bribery or manipulation intended to obtain an unlawful benefit, whether a competitive advantage, a contract, or any other economic or commercial gain. This offense can be committed both by those who offer and by those who accept undue benefits in exchange for acting disloyally or contrary to the interests of their company, client, or business partner.

The protected legal interest in this criminal provision is the integrity of commercial and professional relationships. It sanctions conduct that undermines free competition and transparency in business. Although it arises in the private sphere, it has a significant impact on the economy and on the perception of integrity within the business environment.

Legal Aspects

Article 286 bis of the Spanish Criminal Code establishes that any person who, within the framework of an economic activity, offers, promises, gives, requests, or accepts, directly or indirectly, an unjustified benefit in order to act disloyally commits the crime of private-sector corruption. Such conduct may occur in various contexts:

• Commercial Relations: An executive or employee accepts bribes to influence the awarding of contracts, purchases, or sales.
• Corporate Setting: Administrators or collaborators manipulate information or decisions to favor third parties in exchange for economic compensation.
• Private Negotiations: One party offers or receives a benefit in exchange for acting against the interests of their company or business partner.

The offense is considered one of mere activity, meaning that it is not necessary for the intended result to occur, only the attempt to obtain it. However, the application of Article 286 bis must follow the principle of minimum intervention, ensuring that the conduct is specifically linked to the protection of fair competition. It should not be applied to cases that do not significantly affect competition.

Forms of the Crime: Active and Passive Corruption

Article 286 bis provides for two main forms of this offense:

1. Passive Corruption: Committed by the executive, administrator, employee, or collaborator who receives, requests, or accepts an unjustified benefit to improperly favor another party in the purchase or sale of goods, contracting of services, or commercial relations. This offense is considered a special crime, since the offender must hold one of the specific roles listed in the Criminal Code.
2. Active Corruption: Committed by anyone who promises, offers, or gives an unjustified benefit to executives, administrators, employees, or collaborators so that they improperly favor them or a third party. This form can be committed by any person and is not limited to specific positions.

Legal Consequences

The legal consequences of private-sector corruption are severe:

• Imprisonment: 6 months to 4 years.
• Disqualification: 1 to 6 years from exercising industry or commerce.
• Fine: From the amount of the benefit obtained up to triple its value.

Companies involved in such crimes may also face additional sanctions, such as being barred from contracting with the public sector or being required to compensate affected parties.

Mitigated Form of the Crime

Section 3 of Article 286 bis allows judges to impose a lower penalty and reduce the fine based on:

• The amount of the benefit or value obtained.
• The significance of the offender’s role.

This mitigated type adjusts the penalty to the seriousness of the conduct and the offender’s position within the company.

Corruption in Sports

Article 286 bis also includes a specific provision on corruption in sports. This applies to executives, administrators, employees, or collaborators of a sports entity, as well as athletes, referees, or judges, in cases where the goal is to fraudulently alter the outcome of an event, match, or competition of significant economic relevance. A competition is considered economically relevant if participants receive payment for their participation.

Historical Evolution of the Crime

The criminalization of private-sector corruption in Spain is based on Council Framework Decision 2003/568/JHA of the European Union, which seeks to ensure that corruption in the private sector is penalized across all Member States. This decision responded to globalization and the increase in cross-border trade, turning corruption into a transnational issue requiring a coordinated response.

Spain incorporated this into its legal system through Organic Law 5/2010, which amended the Criminal Code to criminalize private-sector corruption in line with the Framework Decision. This law broadened the concept of corruption beyond the public sphere, addressing a gap that prior laws had not covered. Earlier, Laws 3/2000 and 15/2003 had extended corruption offenses to foreign public officials, and the EU Convention had extended protection to EU officials.

Organic Law 5/2010 aims to ensure fair and honest competition in the market. Corruption in the private sector undermines market functioning and distorts competition, with a broad negative impact on society.

Conclusion

The criminalization of private-sector corruption in Spain under Organic Law 5/2010 seeks to reinforce the protection of fair competition in the market. This measure responds to globalization and the privatization of resources, addressing a gap left by earlier civil laws.

Criminalizing private-sector corruption is essential to ensuring transparency and fairness in business, requiring both adequate legal frameworks and a strong commitment from companies and society to eradicate these unlawful practices. Effective enforcement and the adoption of prevention and detection policies are key steps toward greater transparency and fairness in the business environment.