The new Article 31bis is based on the guidelines given by the Italian Legislative Decree 231/2001, recognizing as grounds for excluding criminal responsibility the adoption of organizational models and management by the board, including surveillance and control measures.
The requirements that the above models of organization and management will have to ensure are the same as provided by Italian law (in fact, Article 31bis, paragraph 5 Criminal Code Spanish provides the same requirements outlined in Article 6, paragraph 2 Legislative Decree 231/2001).
It is important to remark how the new legislation has recently been object of two sentences by the Supreme Court: the first one dated February 29, 2016, No. 154, and the second sentence dated March 16, 2016, No. 221.
The first sentence condemns to the dissolution of a company of import / export, charged for a crime against public health (drug trafficking), while the second absolves a real estate agency for the crime of fraud.
Both judgments recognize the opportunity to adopt management and organization models (Compliance Program), emphasizing the importance of a real and true corporate culture in order to exclude the effects of Criminal Liability of Legal Persons.
Finally, a practical realization of the real situation of the Italian companies in Spain as well as the Spanish ones.
So far, few Italian companies were aware of the existence of such legislation in Spain, which, in the event of default, could result in significant economic damage to both the Italian parent to the subsidiary, as well as damage the group’s image.