Anti-Corruption Agreement Spain (Acuerdo Anticorrupción)

An Anti-Corruption Agreement Spain (Acuerdo Anticorrupción) is a formal written commitment entered into between commercial parties — or between an employer and its employees, directors, agents, or suppliers — establishing binding obligations to refrain from bribery, corruption, facilitation payments, and conflicts of interest in the course of commercial activity in Spain. The agreement is grounded in the Ley Orgánica 10/1995 del Código Penal (CP), specifically Articles 286 bis through 286 quater introduced by Ley Orgánica 5/2010 and substantially reinforced by Ley Orgánica 1/2015, which codify the offences of corrupción entre particulares (private-sector corruption) and corrupción en las transacciones comerciales internacionales.

Article 286 bis of the Código Penal criminalises the active and passive forms of private-sector bribery — offering, promising, granting, or requesting an undue advantage (ventaja no justificada) to or from a director, employee, agent, or representative of a private company, in order to obtain a preferential treatment in the purchase of goods, services, or contracting decisions. The penalty is imprisonment (pena de prisión) of six months to four years, a fine (multa) of up to three times the value of the advantage, and disqualification (inhabilitación especial) from commercial activity. Article 286 quater introduces aggravated penalties where the acts involve public officials, large amounts, or organised crime.

Beyond individual criminal liability, Spain's Ley Orgánica 1/2015 introduced thorough corporate criminal liability (responsabilidad penal de la persona jurídica) under Article 31 bis of the Código Penal. Legal entities — including sociedades limitadas, sociedades anónimas, and other corporate forms — may be held criminally liable for corruption offences committed by their directors, managers, or employees acting on their behalf or for their benefit, unless the company had in place an effective compliance and crime prevention model (modelo de organización y gestión or programa de cumplimiento normativo) that was properly supervised. Criminal penalties for legal entities include fines of up to five times the value of the corrupt advantage, temporary suspension, prohibition from public contracting, disqualification from state subsidies, and even court-ordered dissolution.

The Spanish Fiscalía Anticorrupción (Special Prosecutor's Office for Corruption and Organised Crime) investigates corruption matters, and the Tribunal de Cuentas audits misuse of public funds. Spain is a signatory to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (ratified in 2000) and the United Nations Convention Against Corruption (UNCAC, ratified in 2006), imposing international anti-bribery obligations that the Código Penal implements domestically.

The Anti-Corruption Agreement serves as a core element of a company's compliance programme (programa de compliance) under Article 31 bis CP. The Circular 1/2016 of the Fiscalía General del Estado and the UNE 19601:2017 standard (Sistemas de gestión de compliance penal, developed by AENOR) provide guidance on the minimum content requirements for an effective compliance model. An Anti-Corruption Agreement signed by employees, directors, suppliers, and commercial partners demonstrates active dissemination of anti-corruption standards — a factor courts and prosecutors weigh when assessing whether a company's compliance programme was genuinely effective.

Spain's Ley 2/2023, de 20 de febrero, reguladora de la protección de las personas que informen sobre Infracciones Normativas y de Lucha contra la Corrupción (the Spanish Whistleblower Protection Act, transposing EU Directive 2019/1937) requires companies with 50 or more employees to establish an internal reporting channel (canal de denuncias) for corruption and other infringements. The Anti-Corruption Agreement should cross-reference the company's reporting channel obligations under this law, confirming employees and partners know how to report suspected violations without fear of retaliation.

An Anti-Corruption Agreement Spain is needed whenever a business operating in Spain wants to establish clear contractual commitments against bribery and corruption — whether between the company and its commercial counterparties, or between an employer and its workforce.

The agreement is required when a Spanish company's compliance programme (programa de cumplimiento normativo) under Article 31 bis of the Código Penal needs documentation demonstrating that anti-corruption standards have been communicated to and accepted by directors, senior managers, and employees. Without signed anti-corruption commitments, a company struggles to prove the effectiveness of its compliance model if criminal proceedings are initiated against it or its executives.

An Anti-Corruption Agreement is needed when a Spanish company enters into a distribution, agency, or commercial representation agreement — agents and representatives acting in the company's name and on its behalf can expose the company to Código Penal Article 286 bis liability for acts of private-sector bribery. Contractual anti-corruption commitments, audit rights, and termination triggers in case of violations are standard in international commercial due diligence reviews.

The agreement is necessary when a Spanish empresa participates in public procurement (contratación pública) governed by the Ley 9/2017 de Contratos del Sector Público (LCSP). Article 71 LCSP prohibits companies convicted of corruption offences from contracting with the public sector — having documented anti-corruption agreements in place reduces this risk and demonstrates a genuine compliance culture to contracting authorities reviewing bids.

An Anti-Corruption Agreement is needed when a foreign multinational operating in Spain requires its Spanish subsidiary or local partner to adopt group-level anti-corruption standards — aligning with the UK Bribery Act 2010, the US Foreign Corrupt Practices Act (FCPA), or the French Loi Sapin II (Loi 2016-1691) — all of which impose extraterritorial obligations on their respective companies doing business in Spain and require documented supply-chain compliance.

The agreement is required when a Spanish company undergoes a merger, acquisition, or private equity investment — buyers and investors conduct anti-corruption due diligence and often require target companies to execute anti-corruption representations and warranties, and to have signed anti-corruption agreements with key personnel and suppliers as a condition of closing.

An Anti-Corruption Agreement is also appropriate when onboarding new suppliers, contractors, or consultants who will interact with public officials (funcionarios públicos) on behalf of the company — particularly in sectors such as construction, infrastructure, healthcare, and defence procurement where the Inspección de Trabajo y Seguridad Social and the Fiscalía Anticorrupción pay close attention to third-party intermediary relationships.

Under the Ley de Sociedades de Capital (LSC) RDL 1/2010, the Registro Mercantil maintains the register of Spanish companies. The Código de Comercio 1885 governs commercial obligations. The Agencia Estatal de Administración Tributaria (AEAT) administers Impuesto sobre Sociedades (IS) under Ley 27/2014. The Comisión Nacional de los Mercados y la Competencia (CNMC) enforces competition law. The Código Civil governs general contractual obligations under Article 1255.

An effective Anti-Corruption Agreement Spain under the Código Penal (LO 10/1995) and Ley 2/2023 must contain the following elements to constitute a valid compliance document and enforceable contractual instrument recognised by Spanish courts and prosecutors when assessing the effectiveness of a corporate compliance model under Article 31 bis CP.

Parties and Scope: Full identification of both parties — company name, NIF, registered address, and the capacity of the individual signatory (director, employee, supplier, agent). The agreement must clearly state the scope of activities covered — all commercial transactions, procurement decisions, and interactions with public officials (funcionarios públicos) or private-sector counterparties in Spain and internationally, including transactions conducted through subsidiaries, joint ventures, and intermediaries.

Prohibited Conduct: An explicit list of prohibited conduct under Articles 286 bis–286 quater of the Código Penal, including: (1) offering, promising, granting, or accepting any undue advantage (ventaja no justificada) — whether monetary, in kind, or in the form of favourable treatment — to influence a business decision; (2) facilitation payments (pagos de facilitación) to public officials for routine administrative actions; (3) gifts and hospitality beyond de minimis thresholds defined in the company's policy; (4) political contributions made for commercial advantage; (5) conflicts of interest (conflictos de interés) not disclosed in accordance with the company's procedures.

Compliance Programme Reference: A reference to the company's programa de cumplimiento normativo adopted under Article 31 bis CP, the designated Compliance Officer (Responsable de Cumplimiento) or Compliance Committee (Órgano de Compliance), and the internal regulations (Reglamento Interno de Conducta or Código Ético) that supplement the agreement. The agreement should also cross-reference the UNE 19601:2017 standard (Sistemas de gestión de compliance penal) developed by AENOR, which provides the recognised framework for criminal compliance management in Spain.

Training Obligations: A commitment by the signatory to complete the company's anti-corruption training programme within a defined period — typically 30 days of onboarding for employees and annually thereafter. Training records must be maintained by the Órgano de Compliance as evidence of effective programme implementation under the Circular 1/2016 of the Fiscalía General del Estado.

Reporting Obligations: An obligation to report suspected violations through the company's canal de denuncias (whistleblowing channel) established under Ley 2/2023 — including the contact details of the reporting channel, the confidentiality protections for reporters, and the prohibition on retaliation (represalias) against good-faith reporters protected by Article 36 of Ley 2/2023. The reporting obligation applies even where the signatory is uncertain whether a violation has occurred — suspicion is sufficient.

Record-Keeping and Audit Rights: Obligations to maintain accurate books and records (registros contables) reflecting all transactions — no off-books accounts or payments permitted. Where the signatory is a supplier or commercial partner, the company's right to audit the counterparty's anti-corruption compliance on reasonable notice must be expressly stated, with a cooperation obligation during any investigation by the Fiscalía Anticorrupción or the Inspección de Trabajo y Seguridad Social (ITSS).

Consequences of Breach: Clear contractual consequences for violation — immediate termination of the underlying commercial agreement or employment contract (despido disciplinario under Article 54 of the Estatuto de los Trabajadores for employees), recovery of any profits derived from the corrupt act, and obligation to indemnify the company for all fines, penalties, legal costs, and reputational damage suffered as a consequence of the breach.

Governing Law and Jurisdiction: The agreement is governed by Spanish law — principally the Código Penal (LO 10/1995 as amended by LO 1/2015), the Ley 2/2023 de Protección del Informante, and the Código Civil for contractual obligations — with disputes submitted to the competent Spanish courts or, for commercial parties, an arbitration clause under Ley 60/2003 de Arbitraje.

Forms-legal.com provides this Anti-Corruption Agreement Spain template as a practical starting point for compliance programmes. Companies should have their compliance documentation reviewed by a qualified abogado especialista en compliance or penalista before implementation to confirm alignment with the applicable convenio colectivo and industry-specific regulations.

Under the Ley de Sociedades de Capital (LSC) RDL 1/2010, the Registro Mercantil maintains the register of Spanish companies. The Código de Comercio 1885 governs commercial obligations. The Agencia Estatal de Administración Tributaria (AEAT) administers Impuesto sobre Sociedades (IS) under Ley 27/2014. The Comisión Nacional de los Mercados y la Competencia (CNMC) enforces competition law. The Código Civil governs general contractual obligations under Article 1255.