OECD seriously concerned by absence of foreign bribery convictions in Spain
08/01/2013 - Spain’s enforcement of its foreign bribery laws has been extremely low, with not a single prosecution out of only seven investigations in 13 years since joining the OECD Anti-Bribery Convention. Spain must vigorously pursue foreign bribery allegations and strengthen its legal framework for fighting bribery by addressing gaps in its Penal Code, says a new OECD report.
The OECD Working Group on Bribery has just completed its report on Spain’s implementation of the Convention of Combating Bribery of Foreign Public Officials in International Business Transactions and related instruments. The report calls on Spain to complete the reform of its Penal Code by consolidating or harmonizing its separate offences for the bribery of foreign public officials and for the bribery of European officials, and by removing the exception for State-owned enterprises in the Penal Code’s framework for holding companies liable for foreign bribery.
The Working Group recommends that Spain:
- Pursue its stated commitment to further amend its Penal Code to bring it into line with the Convention;
- Harmonise the scope of its foreign bribery offence, the level of sanctions and the period of limitations for the bribery of all foreign public officials, whether European or not;
- Clarify that the introduction of due diligence controls by a company cannot be used to escape corporate liability;
- Improve co-ordination and case referral among the Special Public Prosecutor’s Office against Corruption (ACPO), the State Prosecution Service, the Courts and other law enforcement authorities;
- Ensure that cases are not prematurely closed;
- Ensure explicit prohibition of the tax deductibility of bribes in the autonomous tax regions of the Basque Country and Navarra; and
- Introduce legislative protection for public and private sector whistleblowers.
The report also highlighted positive aspects of Spain’s efforts to fight foreign bribery, in particular, the 2010 reform of the Penal Code, which introduced Spain’s first corporate liability regime and an improved offence for the bribery of non-European officials. The Working Group welcomed the 2007 reform expressly establishing the competence of the ACPO over serious foreign bribery offences, and thus reinforcing its specialisation, as recommended in Phase 2. The Group also commended Spain for clarifying auditors’ obligation to report suspicions of foreign bribery to competent authorities.
The Working Group on Bribery – made up of the 34 OECD Member countries plus Argentina, Brazil, Bulgaria, Colombia, Russia and South Africa – adopted Spain’s report in its third phase of monitoring implementation of the OECD Anti-Bribery Convention.
The Report, lists all the recommendations of the Working Group to Spain on pages 73-78, and includes an overview of recent enforcement actions and specific legal, policy and institutional features of Spain’s framework for fighting foreign bribery. The report recommends a written follow-up report by Spain in one year on progress enforcing its foreign bribery offences, to help the Working Group decide whether a further evaluation is necessary.
As with other Working Group members, Spain will submit a written report to the Working Group within two years on steps it has taken to implement the new recommendations. This report will also be made publicly available.