The criminal responsibility of legal entities on crimes against the Public Treasury

The Supreme Court verdict number 710/2016 dated October 13th, 2016, has had the opportunity to decide on the criminal liability of a legal entity, derived from the Commission of an offence against the public treasury carried out by the social administrator, who proceeded to the presentation of the Tax Declaration for the year 2012 without declaring the VAT relating to the sale of two properties, doing so with the aim of evading the payment of the corresponding due tax. Indeed, the aforementioned entity perceived VAT on such operations without declaring it to the Treasury, and illegally including it in their assets.

The described facts constitute a crime against public finances laid down in article 305 bis of the criminal code, being the administrator of the legal entity responsible criminally of the crime, insofar as this was the person who actually acted the will of the concerned legal entity to the Commission the charged crime, and thus, is this administrator who, in application of the provisions of article 31 of the Penal Code, is the aforementioned offender.

Now, without prejudice to the specific liability of the natural person, the examined ruling also considered the legal entity to which he belonged to responsible of the crime, because of the assumptions of the criminal responsibility of legal entities being referred to in our legal system, that is:

1.  Existence of a legal provision of criminal liability of the legal entity for the corresponding       criminal type, which in this case is contemplated in the article 310 bis of the Penal Code.
2. Acting on behalf of the entity and for their benefit, by the legal representative of the entity.
3.  Lack of prior adoption of effective measures to prevent the entity’s criminal liability, in  accordance with the provisions of article 31 bis of the Penal Code.

Thus, duly accredited at trial, the Commission of the offence and the concurrence of the legally established assumptions,  the Supreme Court proceeded to the dictate the exposed ruling, in which  the operative provisions or judgement, in addition to condemning the administrator to prison, his disqualification from passive suffrage, a fine amounting to 2.439.693,96 euro, and to lose the possibility of receiving subsidies and public aid and  to lose the  right to benefits or incentives tax or social security; also condemned the legal entity  to penalties of receiving a fine  amounting to 2.439.693,96 euro and to lose the possibility of receiving subsidies and public aid and  to lose the  right to benefits or incentives tax or social security.

In respect of the civil responsibility, it was considered appropriate to condemn both persons (physical person and legal entity/legal person) to the payment of the sum of 4.879.387,92 euros, as well as the corresponding interests and the costs incurred.

There are serious consequences for the entity arising from the performance of its administrator, consequences that could have been avoided through the development, application and implementation of the corresponding program of “Cumplimiento Normativo” or “Compliance” which, to be effective, must, in any case, be properly developed under the direction and supervision of a qualified professional team.

Compartir