Employment positions that compromise the liability of a company

The Attorney General in Spain issued a Circular setting out the criteria regarding criminal liability of legal persons (companies). This document provides instructions to prosecutors to assess the effectiveness of the regulatory compliance plans (compliance) of companies which,  after the reform, can function as a defence to criminal liability.

The Circular reflects the importance of commercial analysis in adequately assessing the business organization and the diligence of its administrators and managers.

The main conclusions of the Circular are:

• Legal persons can be subject to a multitude of crimes, which the Circular sets out in an orderly form, and which we have discussed in previous articles
• Individuals who may compromise the criminal liability of legal persons may be the legal persons’ legal representatives or those who, acting individually or as part of a body, are authorized to make decisions on behalf of the legal person.

The Circular finds that the term administrators is not clearly established, and must include all those who are authorized, explicitly or implicitly, to make decisions on behalf of the legal person.

Therefore, the individuals also included in this group are those who without being administrators or legal representatives of the company, form part of the corporate bodies with decision-making capacities, as well as single representatives and individuals who have been delegated duties.

The rule is aimed at all individuals that have organizational and control powers. This provision expands, in a sensitive manner, the group of people whose criminal conduct can determine the criminal liability of a legal person to include senior and middle managers who have such powers.

For further information on company liabilities in Spain,