Private-to-private corruption: what Article 286 bis of the Spanish Criminal Code punishes and why every compliance programme must cover it

When corruption is discussed in criminal law, the first thing that comes to mind is bribery of public officials. But since the reform introduced by Organic Law 5/2010 of 22 June, the Spanish Criminal Code also punishes purely private corruption: corruption between companies, with no public authority involved. This is the crime of corruption in business under Article 286 bis, an offence that every criminal compliance programme must address expressly and that still goes unnoticed in many risk assessments.

What Article 286 bis punishes

The offence has two sides, passive and active, both punished with the same penalties: imprisonment of six months to four years, special disqualification from engaging in industry or commerce for one to six years, and a fine of one to three times the value of the benefit or advantage.

On the passive side (subsection 1), it sanctions the director, manager, employee or collaborator of a commercial company who, directly or through an intermediary, receives, requests or accepts an unjustified benefit or advantage of any kind — or the mere offer or promise of one — for themselves or a third party, as consideration for unduly favouring another party in the purchase or sale of goods, the contracting of services, or other commercial relations.

On the active side (subsection 2), the punished party is whoever promises, offers or grants that benefit or advantage to the director, manager, employee or collaborator of the other company, in order to be unduly favoured over others in those same commercial relations. The bribe does not need to be consummated: the request, offer or promise alone completes the offence.

Subsection 3 allows the court to impose the lower-degree penalty and reduce the fine according to the value of the benefit and the significance of the offender's role. Subsection 4 extends the provision to sports entities, athletes, referees and judges where the conduct seeks to predetermine or fraudulently alter the outcome of competitions of special significance: sports corruption is, under the Spanish Code, an offshoot of private corruption.

Not to be confused with bribery or transnational corruption

The conceptual boundary matters in defence work and in compliance design. Article 286 bis requires a private commercial context: both the corruptor and the corrupted act in business relations between companies. Where the recipient of the benefit is a public authority or official, the applicable offence is bribery under Articles 419 and following. And where the corruption of officials occurs in international business transactions, the governing provision is Article 286 ter, carrying prison terms of three to six years and severe bans on contracting with the public sector. A single case can fall under several offences, and the classification determines penalties, jurisdiction and strategy.

The company is also liable

This is where the article connects directly with criminal compliance. Under Article 288 of the Criminal Code, when a legal person is liable for a corruption-in-business offence under Article 31 bis, it faces a fine of two to five years, or three to five times the benefit obtained or obtainable if that amount is higher, where the individual's offence carries a prison term of more than two years; in all other cases, a fine of six months to two years or one to two times the benefit.

Recall the mechanism of Article 31 bis: the company is liable for offences committed in its name or on its behalf and for its direct or indirect benefit by its representatives or by those holding organisational and control powers, and also for offences by subordinates made possible by a serious breach of supervisory, monitoring and control duties. Exemption requires having adopted and effectively implemented, before the offence, an organisational and management model with measures suitable for preventing offences of the same kind, supervised by an autonomous body — the compliance officer — and not fraudulently circumvented. We analyse that system in our piece on criminal compliance and Article 31 bis in law firms.

What the programme must cover against this risk

A serious risk assessment should map at least these scenarios: gifts and hospitality to employees of clients or suppliers; opaque or disproportionate commissions and sales incentives; discounts or offers aimed at specific individuals rather than the company; payments to intermediaries and agents without due diligence or traceability; and conflicts of interest in purchasing and procurement, an area linked to the professional duty we covered in conflicts of interest in law firms.

On that map, standard measures include clear gift and hospitality policies with thresholds and records, prior authorisation of commissions and intermediaries, anti-corruption clauses in commercial contracts, targeted training for procurement and sales staff, and an operational internal reporting channel — a requirement that Law 2/2023 made mandatory for many companies, as analysed in whistleblowing channels in law firms. The UNE 19601 (criminal compliance management systems) and ISO 37001 (anti-bribery) standards provide certifiable frameworks that help evidence due diligence.

Practical takeaways

First: private corruption does not require corporate profit motive; an undue favour in commercial relations in exchange for an unjustified benefit is enough. Second: it punishes giving and receiving alike, and also offering or requesting. Third: corporate liability is avoided or mitigated only by a real, documented and supervised prevention model, not by a signed paper. Fourth: the judgment may be published in the media at the offender's expense (Article 288), an added reputational harm. More resources in the law firms and lateral hires section.