Coming into effect on 13th March 2019, this Organic Law responds to the following objectives:
· To transpose the following directives:
- Directive (EU) 2017/1371 of the European Parliament and Council, of 5 July 2017, about the fight against fraud, affecting the financial interests of the EU through Penal Law.
- Directive 2017/541/EU of European Parliament and Council, of 15 March 2017, relative to the fight against terrorism.
· To perfect the transposition of the Directive 2014/62/EU of the European Parliament and Council, of 15 May 2014, relative to the Penal protection of the euro and other currencies facing forgery.
· To change the human organ trafficking crime, adapting it to the precautions taken by the Council of Europe Convention relating to the trafficking of human organs.
· To complete the corruption crime regulation in accordance with the GRECO guidelines (Group of States against corruption).
The modifications made to the Penal Code are as follows:
1.- HUMAN ORGAN TRAFFICKING CRIME (Article 156 bis)
The process for a clearer delimitation of typical conducts begins, penalties will become more serious in cases of special reproach, the treatment process for organized action or crime groups of human trafficking will be clearly set out and moreover, the sentence will become more serious for those who commit international recidivism.
2.- CRIMES AGAINST THE MARKET:
a. Price altering schemes (article 284 CP)
The modification put in place in article 284 of the Penal Code incorporates the use of information technology to alter prices; with regard to protection, spot contracts have fundamental elements related to financial tools and reference indexes and for penalties, an increase in sanctions to comply with directives requirements. Additionally, in the event that the perpetrator is an employee in an investment service company, a credit institution, a supervisory or regulating position of authority, a governing body or trading venue, the penalty will be more severe.
b. Insider trading on the Stock Market (article 285 CP)
The reform from article 285 from the Penal Code classifies new forms of the crime commission act; these circumstances are legally recognised as a person having access to classified information; the penalty will result in being more severe if the perpetrator is an employee in an investment service company, a credit institution, a supervisory or regulating position of authority, a governing body or trading venue.
c. New offense for disclosure of classified information (article 285 bis)
Article 285 bis has been incorporated to categorise illegal disclosure of classified information when it puts the integrity of the market or the trust of the investor at risk.
d. Incorporation of articles 285 ter and 285 quater
Article 285 ter refers to the conceptual content (financial instruments, contracts, conducts, operations and the provided orders) of the spanish and european regulations in terms of the market and financial instruments.
Article 285 quater establishes the punishments for acts of proposition, conspiracy and provocation to the mentioned crimes (price altering schemes and insider trading on the stock market).
e. Criminal liability of the Legal person for previous crimes (article 288 PC)
In terms of the corresponding directive’s requirements, the current article 288 already provides the criminal liability of legal persons for the commission of the aforementioned criminal acts, applied under the provisions of article 31 bis, these cases are required by the European regulation. Notwithstanding, a new specific modification for this precept has been put in place in order to extend the information of the provided case for the new articles 284 bis and 285 quater and to equalize these sanctions with the previous articles 284 and 285.
3.- MODIFICATION OF CRIMES AGAINST PUBLIC TREASURY
a. Crime against the European Union’s public treasury (article 305.3 PC)
The fine for committing tax evasion has been increased from €50,000 to €100,000.
b. Subsidy fraud crime (article 308 PC)
After the implementation of the reform, the unlawful securing of either grants or subsidies from the public treasury will also include the European Union. Additionally, there will be a reduction in the amount obtained, defrauded or unlawful application, constitutes a criminal offense, decreasing from €120,000 to €100,000.
4.- MONEY FORGERY CRIME (article 386 and 387)
The OL 1/2019 extends the range of sanctions to impose on legal persons who are criminally liable of these offenses.
Likewise, it increases the criminal protection of the euro and other foreign currencies for when the forgery crosses the borders of the European Union, not only Spain.
5.- MODIFICATION OF ORGANISATION AND TERRORIST GROUP CRIMES AND TERRORIST CRIMES
a. Organisations and Terrorist Groups
Article 572 of the Penal Code has been modified to exacerbate the prison sentence for the leader of the terrorist group or organisation. Likewise, a new modification is introduced as soon as the disqualification penalty occurs, it shall proceed to be absolute.
b. Terrorist Crimes
Article 573 is being modified to include document falsification among terrorist crimes.
On the other hand, a trip objectively for terrorism, santionned by article 575.3, now has a far stricter regulation, as one can now be sanctioned for entering a terrorist controlled territory.
c. Criminal liability of the Legal person for the crimes against terrorist groups and organisations and terrorist crimes
In the new article 580 bis, the criminal liability of legal persons has been extended for any kind of terrorist crime commission.
6.- MODIFICATION OF CRIMES AGAINST BRIBERY, INFLUENCE PEDDLING AND EMBEZZLEMENT
Articles 427, 431 y 435 bis CP apply to a wider range of public officials, as the definition of public officials has expanded.
The liability of legal persons for embezzlement crimes has been introduced to those legal entities that manage public resources or those who are in charge of the public treasury (article 435.5 PC).
