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Private corruption in compliance programs

| News | Corporate Compliance

Rocío Gil and Elena Ballesteros analyse the measures that can be established in the company to protect ethical development in business and prevent private corruption crimes

The introduction of private corruption in 2010 as an offence in our legal system is the formal consequence of the transposition of EU Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector, which calls on Member States to introduce criminal measures against those who act or favour the corrupt competitor.

With this, the crime of corporate corruption was configured through article 286 bis of the Criminal Code, which punishes not only the manager, administrator, employee or collaborator of a mercantile company or a company that receives, solicits or accepts unjustified benefit or advantage, for them or for a third party, as consideration to unduly favour another in the acquisition or sale of goods, contracting of services or in commercial relations, as well as to whom he promised to pay.

Benefit or advantage in exchange

In short, this constitutes offering or obtaining an unjustified economic advantage or benefit in exchange for an unfair consideration, thereby seriously affecting the rules of free competition.

The legislator's decision was not uniformly accepted. Therefore, even though in almost all democratic countries corruption in the private sector is penalized, there has been no shortage of opponents in our country.

In any case, regardless of existing doctrinal disputes and pending the creation of jurisprudence by the courts in the application of this type of criminal law, companies must include this type of crime in their compliance models and supervise the actions of their managers and employees to avoid corruption, including in relations between individuals, which may be accompanied by a criminal sanction.

In this sense, although the establishment of limits and controls in relations with third parties in the private sector is a simple matter for multinational and Anglo-Saxon companies, where the acceptance and making of gifts is usually absolutely forbidden, it is common that most of the companies that make up the Spanish business landscape, in which the habit of entertaining is very important, are reluctant to this absolute prohibition.

Therefore, if compliance programmes should be tailored to suit the company's needs and respect its usual practices and generally accepted practices like a public prosecutor's blueprint, it also seems fair that, if they act legally, employers should demand some flexibility regarding these royalties.

However, where is the fine line between courtesy and private corruption? What is the degree of admissibility that the company can adopt? The answer to these questions is not simple. Nor does the lack of case law and imprecision in the wording of the penal code help. However, implementing the following recommendations in compliance programs and codes of ethics, can guide the organization:

  1. Clearly and precisely define the compliance policy regarding corruption risk or the red line you do not want to overstep.

Some companies opt for zero tolerance, others understand that not every gift or present constitutes a reputational or criminal risk and act as we will see below.

2. Establish objective limits, even for gifts of a customary nature or accepted by social practices (Christmas hampers, invites)

  • Set a quantitative limit on the gift to be given or received (€).
  • Establish a qualitative limit, that is, the number of gifts to be given or received in a seasonal period.

3. Reject the behaviours that influence decision-making or compromise the independence of the acceptor.

In this regard, the globally developed Organisation for Economic Co-operation and Development (OECD) mnemonic rule GIFT is particularly useful in determining when a gift is courtesy and when it is corrupt and can be summarized as follows:

  • Genuine: Is it an honest gift for my performance in the scope of my duties?
  • Independent: If I accept the gift, could my independence be affected in the future? What about the person who gave it?
  • Free: Do I feel committed to any consideration for accepting the gift?
  • Transparent: Would I publicly declare the gift to my company, third parties or clients?

4. Establish a reporting system that guarantees transparency.

5. Create a gift pool, with subsequent lottery or donation.

6. Regularly communicate and inform employees and managers of specific situations that would be prohibited within the organization, giving examples.

In short, even though the legal wording is imprecise, there are many measures that can be established within the company to protect ethical business development and prevent private corruption crimes. Including on occasions, without the need to reject in a general and absolute way, those gifts that fall within the usual commercial courtesy.

*Organisation for Economic Co-operation and Development (OECD): Tool: Gift and gratuities checklist.


For futrher information, please contact:

Rocío Gil Robles


Elena Ballesteros Tejado


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