Bribery and Corruption in Spain: Arts. 419-424 and 286 bis CP ) Guide 2026

# Bribery and Corruption in Spain: Arts. 419–424 and 286 bis of the Criminal Code, 2026 Guide

The fight against corruption is a priority in Spanish criminal law. The legal system distinguishes between cohecho (bribery of a public official) and corrupción entre particulares (private-sector corruption, Art. 286 bis of the Código Penal (Criminal Code)), with different regimes regarding the active subject, penalties, and corporate liability.

1. Bribery (Cohecho): Typology Under Arts. 419–424 of the Criminal Code

Aggravated Bribery ( Cohecho Propio (Art. 419) ) The Most Serious Offence

Conduct: a public authority or official who, for their own benefit or that of a third party, directly or through an intermediary, solicits or receives a gift, favour, or remuneration of any kind, or an offer or promise thereof, in order to perform an act contrary to the duties of their office.

Penalty: imprisonment of 3 to 6 years, a fine of one to three times the value of the benefit, and special disqualification from public office for 7 to 12 years.

Typical scenarios: payment to an official to grant an unlawful licence, to award a public contract to a specific company, or to shelve a disciplinary file.

Passive Aggravated Bribery: Cohecho Propio Omisivo (Art. 419.2)

Conduct: a public authority or official who performs an act contrary to their duties prior to soliciting or receiving the gift.

Improper Bribery: Cohecho Impropio (Art. 420)

Conduct: a public authority or official who solicits or receives remuneration in order to perform an act that falls within the ordinary scope of their duties (i.e., not contrary to those duties).

Penalty: a fine of one to twice the value of the benefit, and suspensión from employment or office for 6 months to 3 years.

STS (Supreme Court judgment) of 15 June 2021: the payment of "commissions" to officials to facilitate the routine processing of administrative files; without any breach of their duties; constitutes improper bribery (cohecho impropio), not aggravated bribery.

Bribery of Foreign Officials (Art. 423)

Applicable to corruption in international commercial transactions, in compliance with the OECD Convention on Combating Bribery of Foreign Public Officials (ratified by Spain in 2000).

The Briber (Art. 424)

The private individual who offers, gives, or promises the gift is also criminally liable:

• For aggravated bribery: the same penalty as the official
• For improper bribery: a lesser penalty

2. Trading in Influence: Tráfico de Influencias (Arts. 428–430)

Conduct: a public official or authority who exerts influence over another official or authority, by taking advantage of the powers of their office or any other situation arising from a personal or hierarchical relationship, in order to obtain a favourable decisión in a matter in which they have an interest.

Penalty: imprisonment of 6 months to 1 year, a fine, and suspensión from office.

Improper trading in influence (Art. 430): a private individual who exerts influence over a public official to obtain a favourable decisión, without belonging to the public sector; the aggravated form of unlawful favouritism (enchufismo).

3. Private-Sector Corruption: Corrupción entre Particulares (Art. 286 bis)

This offence, introduced in 2010 to transpose Framework Decisión 2003/568/JHA, criminalises corruption in the private sector:

Active conduct (the corruptor): offering, promising, or granting to directors, employees, or managers of private entities an unjustified benefit so that they improperly favour the corruptor in the acquisition of goods or the procurement of services.

Passive conduct (the corrupted party): a director, employee, or manager who solicits or accepts the benefit.

Penalty: imprisonment of 6 months to 4 years, disqualification from engaging in trade or commerce for 1 to 6 years, and a fine.

Aggravated form: where the benefit granted is of particular value or the recipient holds a significant managerial position.

Corruption in sport (Art. 286 bis.4): managers, shareholders, or athletes who receive gifts to alter the outcome of professional sporting events. This is a separately defined offence carrying equivalent penalties.

4. Criminal Liability of Legal Persons

Legal persons (companies and other entities) are criminally liable for bribery offences (Art. 427 bis) and private-sector corruption (Art. 288) where such offences are committed by their representatives, directors, or employees on their behalf and for their benefit.

Penalties for legal persons:

• A fine of two to five times the benefit obtained (bribery)
• A fine of two to five times the benefit obtained (private-sector corruption)
• Dissolution, suspensión of activities, closure of premises, and disqualification from public contracts

Anti-corruption compliance: an adequate criminal compliance programme may exempt the entity from liability or serve as a mitigating factor. The key reference standards are UNE 19601 (Criminal Compliance Management System) and the OECD Guidelines for anti-corruption programmes.

5. Investigation and International Cooperation

Ex officio investigation: the Fiscalía Anticorrupción: ACPO (Anti-Corruption Prosecutor's Office) and the Guardia Civil's UCO (Central Operative Unit) have jurisdiction to investigate corruption offences. Large-scale operations are coordinated through GRECO (Group of States against Corruption, Council of Europe) and OLAF (the EU's anti-fraud office).

Whistleblowers: Ley 2/2023, of 20 February (Whistleblower Protection Act), regulates the protection of informants in the public and private sectors, implementing Directive (EU) 2019/1937. It establishes the Autoridad Independiente de Protección del Informante: A.A.I. (Independent Whistleblower Protection Authority).

6. Leading Case Law

STS: Caso Gürtel (Gürtel Case), 29 July 2020: a landmark conviction establishing doctrine on systematic corruption in public procurement, indirect perpetration (autoría mediata), and the criminal liability of political parties as legal persons.

STS of 28 October 2019: Caso Nóos (Nóos Case): on improper bribery in transactions with public administrations; a mere "commissioned agent" who receives fees in exchange for facilitating contracts with the administration may be liable for bribery.

CJEU, 28 September 2023: interpretation of Directive 2003/568/JHA on private-sector corruption: "unfair competition" as a constituent element of the offence does not require specific economic harm; distortion of market competition is sufficient.

7. Practical Guidance for the Criminal Defence Lawyer

When representing the company under investigation:

• Immediately conduct an internal investigation to define the scope of the facts
• Assess the merits of cooperating with the Ministerio Fiscal (Public Prosecutor's Office), as this can significantly reduce the penalty
• Review the compliance programme to evaluate whether it can be invoked as a mitigating factor
• Consider voluntary self-reporting as a defence strategy

When representing the public official under investigation:

• Establish whether the payments were made before or after the administrative act in question
• Demonstrate whether the act was consistent with or contrary to the official's duties
• Assess the availability of active remorse (arrepentimiento activo) and voluntary return of the benefit as mitigating circumstances

Lexiel identifies relevant TS and CJEU case law on bribery in specific sectors (public procurement, urban planning, healthcare), analyses whether the facts fall within the basic or aggravated offence, and drafts the statement of defence or criminal complaint.