Economic crime
In short
These are the offences in chapter XIII of title XIII of the Criminal Code (Código Penal) (articles 290 to 297). They protect the company, its shareholders and third parties dealing with it against abuses by those who control it. For these purposes, a company is any cooperative, savings bank, mutual society, financial institution, foundation, trading company or similar entity that participates in the market on a permanent basis (article 297).
The perpetrators are usually the de facto or de jure directors (administradores de hecho o de derecho), and also majority shareholders. The concept of de facto director is important: whoever really runs the company can be held liable even if they do not appear in the Companies Register (Registro Mercantil).
A key point: these offences can only be prosecuted following a complaint by the injured party or their legal representative, unless they affect the general interest or several people (article 296).
| Conduct | Penalty | Article |
|---|---|---|
| Falsifying the annual accounts or other documents on the company’s position in a way capable of causing harm | 1 to 3 years in prison and a fine of 6 to 12 months (upper half if harm is caused) | 290 |
| Imposing abusive resolutions by taking advantage of a majority, to the detriment of the other shareholders | 6 months to 3 years in prison or a fine of one to three times the benefit | 291 |
| Imposing or taking advantage of harmful resolutions adopted by a fictitious majority | The same as article 291 | 292 |
| Denying or preventing a shareholder, without legal grounds, from exercising their rights to information, participation or pre-emptive subscription | A fine of 6 to 12 months | 293 |
| Obstructing supervisory bodies in companies subject to supervision | 6 months to 3 years in prison or a fine of 12 to 24 months | 294 |
Falsification of accounts (article 290) is the most common in practice: window-dressing the balance sheet to obtain financing, hiding profits from a minority shareholder or creating the appearance of a position that does not exist. The judge will assess whether the falsification was capable of causing financial harm. If commercial documents are falsified, an offence of document forgery may also be committed.
Many disputes between shareholders are dealt with as breach of fiduciary duty (administración desleal, article 252): a director who, by exceeding their powers, causes harm to the assets they manage. It carries the same penalties as fraud: six months to three years in prison, or one to six years plus a fine if there is an aggravating factor, such as the amount exceeding 50,000 euros. When the director directly takes the company’s money or assets, it is misappropriation (apropiación indebida), with the same penalties.
Article 257 punishes with one to four years in prison and a fine of twelve to twenty-four months anyone who hides their assets to the detriment of their creditors (alzamiento de bienes), or disposes of assets in a way that hinders or prevents a seizure or enforcement proceedings, whether already started or foreseeable. Selling or giving assets to relatives or related companies when a claim is on the horizon is the typical case. If the debt is owed to the Tax Agency or Social Security, the penalty is one to six years.
Submitting an incomplete or false list of assets in a seizure, or failing to submit one when required, is punished with three months to one year in prison or a fine of six to eighteen months (article 258), although it is not prosecuted if the debtor corrects the statement before it is discovered.
Article 259 punishes with one to four years in prison and a fine of eight to twenty-four months anyone who, being currently or imminently insolvent, hides or destroys assets, makes disposals without economic justification, fakes debts, keeps two sets of books or seriously breaches the duty of diligence in management, and also anyone who causes their own insolvency in this way. If it is through negligence, the penalty is six months to two years or a fine. It is only prosecuted when the debtor has stopped regularly meeting their obligations or has been declared insolvent (concurso).
The penalty rises to two to six years in prison if a large number of people are harmed, if any creditor suffers a loss of more than 600,000 euros or if at least half of the debts are owed to the Tax Agency and Social Security (article 259 bis). Paying one creditor to the detriment of the others, without economic justification, is also an offence (article 260). The classification given to the insolvency in the insolvency proceedings is not binding on the criminal judge (article 259.6).
As regards limitation periods, falsification of accounts, concealment of assets and basic fraudulent insolvency become time-barred after five years; aggravated insolvency under article 259 bis, after ten (article 131).
As a minority shareholder or creditor, you can file a criminal complaint (querella) and act as private prosecutor (acusación particular). In that role we request the company’s documents, a forensic accounting report and measures to secure assets. For these offences, a complaint by the injured party is essential, so it should be prepared carefully and without delay.
Every case is different; once we have studied yours, we will give you a personalised written quote.
It is an offence committed within a company, usually by its directors or majority shareholders: falsifying the accounts, imposing abusive resolutions, preventing a shareholder from exercising their rights to information or participation, or obstructing supervisors. These offences are set out in articles 290 to 297 of the Criminal Code.
Yes, if the director denies or prevents, without legal grounds, the exercise of the rights to information, participation in management or pre-emptive subscription. It is punished with a fine of six to twelve months (article 293 of the Criminal Code). It is only prosecuted if the injured shareholder files a complaint.
One to four years in prison and a fine of twelve to twenty-four months (article 257 of the Criminal Code). If the debt being evaded is owed to the Tax Agency or Social Security, the penalty is one to six years in prison and a fine.
Only if they committed the offence of fraudulent insolvency: hiding assets, unjustified disposals, keeping two sets of books or a serious breach of the duty of diligence. The penalty is one to four years in prison and a fine (article 259). A company entering insolvency proceedings is not a crime in itself.
For some offences, yes. The Criminal Code provides for fines on the legal entity for fraud and breach of fiduciary duty (article 251 bis) and for concealment of assets (article 258 ter), when the requirements of article 31 bis are met. A good compliance programme can be key to its defence.
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