March 14, 2017
With this illustrative example, the FGE explained in the recent Circular 1/2016, the possibility that an employee acting for their own benefit could indirectly benefit the legal entity, stating that:
"Take the example of a nightclub bouncer who, poorly controlled by his superiors, sells drugs to customers for his own economic benefit, which indirectly can benefit the company by potentially generating a greater influx of customers" - p. 18 -.
Focusing the object of this article on profit as a criterion for attribution, art. 31 bis a) CP states that within the scenarios provided for in the Code, the legal entity will be criminally responsible "for crimes committed in the name or on behalf of the same, and for its direct or indirect benefit, by its legal representatives or by those who, acting individually or as members of an organ of the legal entity, are authorized to make decisions on behalf of the legal entity or hold organizational and control powers within it." [1]
The second attribution scenario is found in paragraph b) of the aforementioned art. 31 bis, indicating that the CP states that the legal entity will be responsible for the "crimes committed, in the exercise of social activities and on behalf of and for the direct or indirect benefit of the same, by those who, being under the authority of the natural persons mentioned in the previous paragraph, have been able to carry out the acts due to a serious failure by those persons to fulfill their duties of supervision, vigilance, and control of their activity considering the specific circumstances of the case."
In this regard, the FGE concludes that profit as a criterion for attributing the criminal responsibility of the legal entity maintains its objective nature [2], requiring that the action of the natural person - employee or manager - can achieve a direct or indirect benefit for the legal entity, "valuing this as advantageous from an objectively and hypothetically reasonable perspective, regardless of external factors that could ultimately determine that the utility does not occur" - p. 17 -.
The FGE clarifies in Circular 1/2016 that it is not necessary for the benefit to occur, "it being sufficient that the action of the natural person is directly or indirectly aimed at benefiting the entity. Even when the natural person has acted for their own benefit or interest or that of third parties unrelated to the legal entity, the typical requirement will still be met, as long as the benefit can reach the latter, the suitability of the conduct for the legal entity to obtain some kind of advantage associated with it being assessed." This is the case of the nightclub bouncer mentioned above.
In this regard, it is important to analyze what the FGE understands in Circular 1/2016 - p. 18 - by direct or indirect benefit, and for the sake of certain language economy, this phrase in the Circular is worth highlighting: "Only those conducts that, under the corporate structure, are carried out by the natural person for their exclusive and own benefit or that of third parties, and are unsuitable to provide any benefit, direct or indirect, to the entity, will be excluded."
In other words, for the FGE, as long as the conduct of the natural person is suitable ex ante to create a direct or indirect benefit for the legal entity, it is sufficient to meet the profit requirement, even when the natural person acted in their own interest, without even intending to benefit the company. As in the case of the nightclub bouncer, who by selling drugs at the door attracts more customers, there is an indirect benefit to the company, notwithstanding the practical difficulty for the prosecution to prove that the increased customer flow is due to the bouncer's "dealing."
Therefore, it is undeniable that the benefit criterion will be interpreted extensively by the Prosecutor's Office, requiring future jurisprudential development on this issue, as noted in the well-known Judgment No. 154/2016 of the Second Chamber of the Supreme Court, whose rapporteur was the current Attorney General, Hon. Mr. José Manuel Maza Martín: "This is an aspect that will undoubtedly have to be resolved in a case-by-case manner in the future and, along with others incorporated in the provision, will undoubtedly be the subject of significant debates." [3]
In the same sense, STS 154/2016 explains that we must avoid "maximalist and equally rejectable positions, both those that hold that there will always be a benefit for the legal entity, even if only due to the economic savings resulting from the absence of adequate control mechanisms, and those that are excessively restrictive, which can end up denying such benefits, in many cases, due to the reputational damage and the ultimate fulfillment of the penalties, pecuniary and prohibitive, eventually imposed, as a result of the criminal acts committed by the natural persons that integrate it, causing harm to the legal entity itself."
Thus, the Supreme Court introduced an interesting question: Can the cost savings from the lack of implementation of a compliance program constitute an indirect benefit for the company?
Although debatable, for some scholars [4], this cost savings is sufficient to justify that the crime is attributed to the legal entity as an indirect benefit, given that, otherwise, they argue, among other things, that reckless crimes - punishable insolvencies (art. 259.3CP), offenses against natural resources and the environment (art. 331CP), money laundering (art. 302.2 CP), and terrorist financing (art. 576.5CP) - could not be attributed to legal entities.
In conclusion, the benefit criterion will be highly debated by defenders and prosecutors, being key in the attribution of criminal responsibility of the legal entity, so I agree with the Supreme Court that legal operators need jurisprudential development, that is, quality judgments from our courts that justify the existence or non-existence of direct or indirect benefit.
[1] Note at this point that the reform carried out by LO 1/2015 replaces the term "to its advantage" with "direct or indirect benefit," which does not differ much terminologically.
[2] It already did so in Circular 1/2011 when the CP included the term "to its advantage."
[3] See STS 154/2016 FJ 13º p. 30.
[4] Among them NIETO MARTÍN, A. or NEIRA PENA, A. M.
Ignacio Montoro Iturbe-Ormaeche | Specialist in Economic Criminal Law and professional civil liability
