The offence of breach of trust in business management is regulated under Article 252 of the Spanish Criminal Code and is designed to protect another’s property. This criminal provision imposes penalties on directors or managers who, in the exercise of their functions, cause harm to the assets under their administration.

Interpretative Issues in the Offence of Breach of Trust in Business Management

The definition of this offence in the Criminal Code highlights several decisive elements for understanding its scope and nature:

• Powers of administration over another’s property:
  The active subject must be a person authorised to administer property belonging to another. This includes both de jure and de facto directors, i.e., those who in practice perform managerial duties even if they do not formally hold the office. Likewise, individuals who, without formal status as a director, exercise control over another’s property and cause harm may also be considered active subjects.
• Exceeding managerial powers:
  For the offence to exist, the offender must exceed the powers granted to him in his role as manager. Such excess may consist of an act or omission going beyond what was authorised, i.e., acting outside reasonable limits or improperly exercising the entrusted powers.
• Damage to the administered assets:
  Damage must be caused to the property under administration as a consequence of exceeding those powers. Such damage may be broadly understood in material terms, encompassing both actual losses of assets or resources and loss of expected profits.
• The damage may be static or dynamic, i.e., it may derive from legal transactions or from frustrated expectations of generating gains. However, not every harm is legally relevant: only damage that can objectively be attributed to the director and which exceeds what could reasonably be considered permissible risk within an ex ante assessment and an overall management plan.

Serious Offences and Criminal Sanctions

It is crucial to stress that not every breach of a director’s duties amounts to the offence of breach of trust. According to case law and doctrine, only serious violations that exceed what can be regarded as ordinary management and which cause assessable damage may give rise to criminal liability.

Thus, not every detrimental decision for the company is punishable: the background of the case, the scope of ordinary management, and whether the action substantially deviated from usual practice or the risks the company was willing to assume must be assessed. The director’s duties and the justification for the harm must also be considered, since management by nature entails risks. It is therefore not only the isolated decision that must be judged, but the facts as a whole, taking into account all relevant circumstances.

Distinction between Breach of Trust and Misappropriation

The distinction between breach of trust in business management and misappropriation lies in the misuse of managerial functions, whether extensively or intensively.

• If a director performs an act that exceeds his powers and disposes of assets he was not authorised to manage, this constitutes misappropriation.
• If, however, the misuse of managerial powers is serious and contrary to the interests of the company, it constitutes breach of trust in business management.

Another criterion is whether the act is definitive or not. If the act still allows for restitution of the assets, it falls under breach of trust; whereas definitive disposal constitutes misappropriation. The protected legal interest is also decisive: static property values (misappropriation) versus expectations of profits or avoidance of losses (breach of trust).

According to the “intensive/extensive” criterion:

• A manager who performs an act he was not authorised to carry out is punishable.
• In breach of trust, the excess is intensive: the manager acts within his powers, but in bad faith or at least with conditional intent, knowing that damage will result.

In short: fraudulent misuse without definitive dispossession constitutes breach of trust.

The Spanish Companies Act and Its Criminal Implications

The Spanish Companies Act establishes specific duties for company directors, particularly the duty of diligence and the duty of loyalty.

• The duty of diligence requires the adoption of appropriate measures to ensure compliance with legal obligations.
• The duty of loyalty prohibits decisions in conflict of interest or decisions benefiting the director or third parties to the detriment of the company and its shareholders.

A breach of these statutory duties may have criminal implications and may amount to the offence of breach of trust in business management, provided the requirements of Article 252 of the Spanish Criminal Code are met.