I OVERVIEW

Under the Spanish system, the victim can appear as a party to the criminal proceedings, not only for the purposes of seeking the corresponding compensation for damage but also in order to exercise a criminal action. Both actions are dealt with and sentenced within the same proceedings.

For these reasons, the Spanish legal system does not distinguish between civil and criminal fraud, as other legal systems do.

Additionally, the fact that Spain is a geographic logistical hotspot for transnational crime has meant that Spanish courts and law enforcement frequently have to use and are very familiar with mutual legal cooperation instruments. For the same reason, Spanish courts and law enforcement are proactive in providing cooperation to other jurisdictions seeking their reciprocal aid.

In 2015, the Spanish Criminal Code (SCC) was amended substantially to increase the penalties for a number of financial offences and define new types of wrongdoing. Specifically, the amendment significantly affected the legal provisions on the confiscation of the proceeds of crime. The regulation of fraud, unlawful administration, IP infringements and other offences were also amended. In addition, as a result of the public outcry regarding significant corruption schemes uncovered in previous years, the offences related to private and public corruption were amended significantly and the corresponding penalties were enhanced. Finally, the SCC amendment also establishes the possibility of a company's criminal liability being mitigated or excluded, under certain circumstances, if it had implemented adequate corporate compliance programmes prior to the commission of the offence.

In line with this trend to increase the punishment for financial crime and comply with EU regulations,2 the SCC was amended again in February 2019, in relation to matters such as stock exchange market abuse and insider trading, EU and Spanish tax fraud and, once again, corruption.

II LEGAL RIGHTS AND REMEDIES

i Criminal remedies

The SCC defines fraud as obtaining undue profit from the victim using deception.3 Committing fraud generally carries a prison sentence of up to three years and a fine. The prison sentence can be increased to up to eight years if there have been certain aggravating circumstances. Misappropriation of funds is also considered as a form of fraud when perpetrated by an administrator or depositor of another's assets. There are other specific provisions in the SCC regarding fraud that are beyond the scope of this article, although some of them are referred to below.

According to the Spanish Criminal Procedural Act (SCrimPA), all criminal offences give rise to a criminal action to impose a penalty on the offender, and to a civil action for the compensation of the damage caused to the victim. Both civil and criminal actions may be exercised within the same criminal proceedings.

There are two major phases in Spanish Criminal proceedings: the investigative stage and the trial. One of the main characteristics of the Spanish criminal procedure is that a judge – the investigating judge – is in charge of conducting the pretrial criminal investigation with the cooperation of the judiciary police and the public prosecutor. The trial is held before professional judges (who cannot be the same people who are in charge of the investigation) and, only in some exceptional cases, before a jury. Serious fraud cases are generally tried by a panel of three judges.

Under the Spanish system, the victim can appear as a party to the criminal proceedings, not only to seek the corresponding compensation but also in order to exercise the criminal action. The victim can exercise either action by filing a criminal complaint before the competent judge in order to launch the proceedings or by appearing as a party to ongoing criminal proceedings initiated ex officio to investigate the offence. During the investigative stage of all criminal proceedings, the judge must summon the victims and inform them of their right to appear as parties to the criminal proceedings and exercise criminal and civil actions. Even if the victims decide not to appear as parties to the proceedings, their right to restitution will not be waived. In this case, the public prosecutor is empowered by the SCrimPA to exercise the civil action on their behalf and to seek compensation for the damage caused by the criminal offence. The waiver of the civil action must always be explicit and in writing. The victim can also reserve the civil action in order to exercise it in civil proceedings before the competent civil courts, as analysed below.

If there are several victims, the waiver of the action by any one of them does not affect the other victims' rights to seek compensation. All the actions exercised by the victims of the same criminal offence are dealt with and decided within the same proceedings. Moreover, to the extent possible, the victims should litigate under the same legal representation. For this purpose, the judge can request that the victims reach an agreement in order to litigate collectively. It should be noted that the Spanish system does not foresee the possibility of class actions. However, in cases where a criminal offence causes damage for a significant number of individuals, in practice, the victims usually form associations in order to file a joint lawsuit.

Typically, the victim should exercise the civil action against the criminal offenders. According to the SCC, the civil action can be exercised against the individual who committed the fraud (the perpetrator) and the persons who assisted in committing it (accomplices). When several individuals are held liable for the fraud, the court determines, in the judgment, the quota for which each group is to be held accountable. Typically, all the offenders are held jointly and severally liable for their respective quotas. The SCC was amended in 2010 in order to regulate corporate criminal liability. Since then, legal persons can also be held criminally liable for fraud. Should this be the case, the company will also be ordered to pay compensation to the victims, jointly and severally, with the individuals who were directly liable for perpetrating the offence.

In addition, a civil action resulting from fraud can also be exercised against the following persons.

Civil parties

The SCC foresees the possibility of seeking compensation from persons other than the criminal offenders. Among them, the following groups of persons could be sued within the framework of an investigation for fraud.

Insurance companies

According to the SCC, should the criminal event be covered by an insurance policy, the insurance company shall be held directly liable for covering the compensation for the victim within the limits provided in the policy. The action against the insurance company can be exercised in the framework of the same criminal proceedings initiated to judge the fraud. However, the insurance company could, of course, have a right of recourse against the offenders that could be exercised at a later stage.

Public entities

Any Spanish public entity can be held civilly liable for the consequences of criminal offences committed by civil servants or public employees acting under their control, provided that the damage was a direct consequence of the malfunctioning of the public service they were entrusted to provide. This civil liability is subsidiary to that of the individuals or companies held criminally liable for the fraud. This means that the public entities are only liable for the amounts that the offenders are unable to pay to the victim.

Companies

Companies can be held civilly liable for the damage caused as a result of the criminal offences committed by their representatives, directors or employees while carrying out their professional obligations or acting on behalf of the company. This civil liability is also subsidiary to that of the individuals or companies held criminally liable for the fraud.

Receivers of the proceeds of fraud

Those persons who profited for gain from the effects of the fraud can be ordered to return the assets or to pay compensation to the victim up to the amount of their share of the proceeds, provided the following requirements are met:

  1. they did not take part in the fraud;
  2. they received the proceeds of the fraud without any consideration; and
  3. the persons acted in good faith; in other words, they were unaware that the assets were the proceeds of a fraud.4

Conversely, if these third parties acted in bad faith, namely knowing that the assets were the proceeds of fraud, they could be charged with the specific criminal offence of receiving stolen assets or money laundering, depending on the circumstances. Receiving stolen assets and money laundering are criminal offences that are independent from fraud and, therefore, they can be investigated in separate criminal proceedings. This might prove helpful for the purposes of tracing assets stolen abroad in Spain, as is discussed in further detail below.

Civil action against civil parties and receivers of stolen goods

Civil action against the civil parties and receivers of the stolen goods mentioned above must also be exercised within the criminal proceedings launched against the perpetrator of the fraud. For these purposes, the investigative judge, ex officio or as per the prosecution's or the civil claimant's request, shall call them as parties to the criminal proceedings in order to allow them to exercise the corresponding defence.

In Spanish case law, the civil liability resulting from a criminal offence is considered to be almost objective, meaning that, once the criminal offence is proven and judicially declared, the offender is ordered to compensate the victim almost automatically. Therefore, the only possible means of defence against this type of civil claim pertains to the defence against the criminal charges. The same is applicable to the civil parties referred to above. For this reason, their defence is often limited to challenging the relations with the offender that might give rise to their civil liability, in both cases.

In criminal proceedings in Spain, the burden of proving criminal liability lies with the prosecution. The standard of proof includes the presumption of innocence and in dubio pro reo principles according to which, in summary, the defendant cannot be sentenced if reasonable doubt exists.

The same standard of proof applies to the civil claim, when filed within criminal proceedings. According to the SCC, the civil claim is limited to:

  1. the restitution of the specific defrauded goods, when possible;
  2. the restoration of the injury; and
  3. the compensation of both material and moral damages.

The claimant has the burden of proving the amount of the damages. The Spanish system, in contrast to other jurisdictions, does not foresee punitive damages.

When a civil action is exercised in criminal proceedings, its statute of limitations is the same as that which is applicable to the criminal offence itself. In the case of fraud, the statute of limitations may vary from five to 15 years, depending on the seriousness of the case.

ii Civil remedies

As explained above, according to the SCrimPA, the primary avenue for the victim of fraud to claim compensation is within criminal proceedings against the offender. Still, the SCrimPA also foresees the possibility of the victim reserving a civil action in order to exercise it before a civil court. However, the victim cannot file a civil lawsuit until a criminal action is completed through a final and binding judgment. For this reason, in practice, it is extremely rare for victims to choose this option.

The statute of limitations corresponding to this civil action, when exercised before civil courts, is five years from the day the criminal judgment became final and binding.

Civil courts are bound by the facts affirmed in the previous criminal judgment and, therefore, the dispute within these civil proceedings is limited to the extent of the damage and the amount of compensation.

III SEIZURE AND EVIDENCE

i Securing assets and proceeds

Criminal remedies

According to the SCrimPA, an investigative judge can adopt a number of protective measures in order to secure the assets and proceeds of fraud and preserve the victims' rights to retrieve their property or obtain compensation.

The requirements for the adoption of such measures are as follows:

  1. fumus boni iuris, or the likelihood of success on the merit of the case. According to this requirement, the judge must evaluate whether, prima facie, the evidence supporting the existence of the fraud is sound; and
  2. periculum in mora, or danger in the delay. The judge evaluates whether there is a significant risk that the effectiveness of a potentially favourable judgment might be in jeopardy.

If the previous requirements are met, the SCrimPA allows any of the preventive measures provided for in civil legislation to be adopted, as is described below.

In addition to these civil preventive measures, the SCC allows the investigative judges to adopt specific measures under certain circumstances. Specifically, in criminal proceedings against legal persons, the investigative judge can order the following preventive measures against the company during the investigative stage:

  1. temporary closure of premises or establishments;
  2. temporary suspension of corporate activities; or
  3. judicial intervention, when necessary to protect the rights of the company's employees or creditors.

In criminal proceedings, these preventive measures can be adopted at any time during the investigative stage, or even later, during the trial, if new circumstances arise that make them necessary. The judge can adopt these measures ex officio or following an application from the public prosecutor or the victim. As a general rule, the judge adopts these measures after hearing both parties' allegations. However, in exceptional cases, where there is an imminent and significant risk of the assets disappearing, these measures can be adopted without previously hearing the defendant. In any case, the defendant is allowed to challenge the preventive measures after the fact.

Civil remedies

The Spanish Civil Procedural Act (SCivPA) does not establish an exhaustive list of precautionary measures but instead allows the judge to adopt any measures deemed necessary and proportionate to secure the plaintiff's rights, provided that:

  1. the judge chooses the least burdensome measure for the defendant; and
  2. the measure is aimed at guaranteeing the effectiveness of a potentially favourable judgment.

The SCivPA specifically refers to the following measures, but only as examples:

  1. freezing of the defendant's assets;
  2. judicial intervention or administration of productive assets;
  3. judicial deposit of the defrauded assets; and
  4. the registration of the claim with any public registry (e.g., commercial or real estate registries). This measure is especially useful to prevent the defendant from selling or transferring the asset to bona fide purchasers.

In order to adopt these measures, in addition to the fumus boni iuris and periculum in mora requirements described above, civil legislation requires that the claimant posts a bond or guarantee that is sufficient to respond, in a fast and effective way, to the damage that the measure might have caused to the defendant in the event that the claim is rejected. The latter is not necessary when the measures are adopted in criminal proceedings.

Under civil jurisdiction, the judge can only adopt these preventive measures at the request of the plaintiff. Typically, the request should be filed together with the principal claim. However, the law allows these measures to be requested and adopted before filing the claim, provided that the plaintiff proves the urgency and need for their immediate enforcement. In this case, the adopted measures are left without effect if the claim is not filed before the judge within 20 days of their adoption. After filing the claim, during the course of the civil proceedings or the appeal, these measures can only be requested on the basis of new unexpected circumstances.

ii Obtaining evidence

In criminal proceedings

As stated above, in Spanish criminal proceedings, there is a pretrial stage where a judge is in charge of gathering all the information available as regards the facts supporting the case. This means that the judge investigates not only the potential existence of fraud, but also the grounds for the victim's compensation rights. In accordance with the SCrimPA, the investigative judge must make sure to gather all the relevant information, regardless of whether it is detrimental or beneficial to the defendant. For these purposes, the following measures can be adopted:

  1. The judge can call witnesses or experts to give testimony. In accordance with the Spanish Constitution, the defendant is assisted by a lawyer during these interrogations and cannot be forced to give testimony and has the right not to answer all or some of the questions. However, the witnesses testify under oath and cannot be assisted by a lawyer.
  2. The judge can collect documents from the parties or third persons. Again, the defendant, as part of his or her right to non-self-incrimination, cannot be forced to produce documents that might be detrimental to his or her defence.
  3. The judge, together with the parties, can personally inspect the premises where the offence took place or any other places or objects relevant to the case.
  4. The judge can order any premises where there are indications that evidence of the offence might be found to be searched, or the defendant's written or oral communications to be intercepted. In order to adopt these measures, the judge must issue a written decision outlining the reasons why they are deemed to be proportionate, necessary and relevant for the case.

The judge can adopt these measures ex officio or at the request of any of the parties, including the civil claimant.

Additionally, the SCrimPA foresees the possibility for the judge to order the defendant to be remanded in custody, if there is enough evidence that they might try to destroy or conceal evidence relevant to the case.

In civil proceedings

A significant difference between Spanish – and continental law in general – and common law lies in the 'discovery' system. Spanish law does not allow discovery and, as a general rule, parties to a dispute cannot rely on others to provide evidence to support their allegations unless ordered by a judge. In accordance with this rule, Spain made a declaration to the Convention of 18 March 1970 on the taking of Evidence Abroad in Civil or Commercial Matters5 (the Hague Evidence Convention) that no letters of request would be executed when issued for the purposes of obtaining pretrial disclosure of documents as known in common law countries.

However, the SCivPA establishes certain mechanisms for the parties to obtain an order of disclosure from the court that is addressed to others or to third parties.

Preliminary proceedings

Before initiating civil proceedings, the claimant can initiate preliminary proceedings in order to collect information needed as a basis for the claim. However, the type of documents or information that the claimant can obtain through these proceedings is limited to the closed list set out in the SCivPA,6 namely:

  1. information regarding the legal standing or representation of the potential defendant;
  2. exhibition of the assets that constitute the object of the claim;
  3. exhibition of a will;
  4. exhibition of a company's documents or financial records, if the claimant is one of the company's shareholders;
  5. exhibition of an insurance policy to the person in possession of it; and
  6. in proceedings affecting the interests of consumers or where there are a significant number of potential claimants, adoption of the appropriate measures for identifying the affected individuals.

Otherwise, the general rule in civil proceedings is that each party must provide the court with the evidence supporting its respective claims.

Information requests to third parties

Once the civil proceedings are initiated, the SCivPA7 entitles parties to request the court to order that certain information or documents be gathered from third parties. Specifically, at the parties' request, the court can order companies and public entities to produce documents or to certify the accuracy of certain information.

IV FRAUD IN SPECIFIC CONTEXTS

i Banking and money laundering

Fraud

There are no specific provisions in the SCC as regards fraud affecting banks, although all the general criminal provisions are applicable to them. Following the collapse of the Spanish financial system, there were a number of criminal cases against the former management of financial institutions, which especially affected savings banks.8 This case law assessed the liability of savings banks in three types of cases:

  1. where management at the savings banks deliberately forged the banks' financial records in order to conceal their actual financial situation and pretended to meet the regulator's solvency requirements;
  2. when management at the savings banks significantly increased their compensation packages in spite of the critical financial situation of the institutions; and
  3. where the savings banks commercialised derivative products, with insufficient transparency as to their risks, to the detriment of their clients.

The first group of cases resulted in a number of criminal convictions for accounting fraud in the past few years. In terms of the second group, the first cases sentenced by the Spanish criminal tribunals convicted directors of savings banks of unlawful administration or misappropriation, or both. However, now the most egregious cases have been tried, and recent judgments on the matter have acquitted management when high retributions were deemed reasonable by the Bank of Spain and necessary to retain the management of savings banks in times of crisis. As for the third group, although the Spanish Public Prosecution Office initially launched a number of criminal investigations in order to assess potential criminal liability in the introduction to the market of financial products by savings banks, eventually most of them were closed as the prosecution did not succeed in proving the existence of a systemic and organised scheme to defraud customers. For this reason, eventually, case law determined that savings banks' liability for irregularities committed when selling derivatives should be assessed by civil courts on a case-by-case basis, depending on the profile of each investor and the information provided to them. This gave rise to a significant number of civil claims.

Money laundering

Financial institutions are subject to the Spanish anti-money laundering (AML) legislation. Spanish AML legislation, which is the result of implementing the European Union regulations9 on the subject, imposes a number of obligations on those that are subject to it, including banks, for the purposes of preventing money laundering and terrorist financing. A detailed analysis of these obligations exceeds the scope of this book. For these purposes, suffice it to say that both banks and their directors and employees are subject to severe administrative sanctions if these obligations are breached. Moreover, in more serious cases, they could also be subject to criminal liability for recklessly aiding and abetting money laundering.10

ii Insolvency

The SCC specifically regulates several criminal offences to protect creditors from debtors' actions aiming to fraudulently put their assets beyond their reach. These criminal offences can be classified into two groups: fraudulent conveyance and punishable insolvency.

Fraudulent conveyance of assets

The SCC considers that a criminal offence has been committed when the debtor:

  1. fraudulently hides his or her assets in order to put them beyond the reach of his or her creditors, provided that the conduct results in actual or apparent insolvency; or
  2. carries out any other transaction, actual or simulated, for the purposes of fraudulently delaying, hindering or preventing ongoing enforcement proceedings.11

Fraudulent insolvency

These offences are meant to protect creditors from the actions of debtors that have been judicially declared insolvent.12 They can be classified into the following types of misconduct:

  1. actions aimed at putting the debtor's assets out of reach of the insolvency proceedings;
  2. actions aimed at forging the debtor's financial records or any other relevant documents in order to conceal or delay the declaration of insolvency;
  3. actions aimed at favouring some of the creditors to the detriment of the rest; and
  4. in general, actions that constitute a serious breach of the diligence duties in managing the insolvency situation prior to the insolvency judicial proceedings.

iii Fraud's effect on evidentiary rules and legal privilege

Procedural fraud

Procedural fraud is a criminal offence under the SCC. Procedural fraud is perpetrated when one of the parties to judicial proceedings produces false evidence with the aim of deceiving the court and obtaining a favourable judgment to the detriment of the financial interests of the other party.13 Indeed, for procedural fraud to apply, it is a specific requirement that the deception be carried out for the purposes of obtaining financial gain. Should this requirement not be met, the misconduct would be characterised as forgery or false testimony, depending on the circumstances.

A judicial decision will become null and void if it was rendered as a consequence of fraud (or as a consequence of any other criminal offence), provided the following requirements are met:

  1. the fraud had a direct impact on the outcome of the judgment, which would have been different otherwise; and
  2. the fraud has been declared in a final and binding criminal judgment, after specific judicial proceedings are carried out to that effect.

Legal privilege

Article 24 of the Spanish Constitution recognises the right to privilege within the context of the criminal defendant's right to a defence. For this reason, legal privilege is only specifically regulated in connection with procedural rights. In that regard, the Spanish Act on the Judiciary Board14 sets out that lawyers are subject to professional secrecy and cannot be forced to provide testimony or information, as regards the facts that the client revealed to them in that condition. This legal privilege is not only viewed as the client's right but also as the lawyers' privilege. For this reason, even if the client waives their right, the lawyer would still have to assess whether, in the specific case, it is appropriate to disclose the privileged information and could refuse to do so.

Legal privilege only applies to cases in which the lawyer acts as such. When it is determined that the lawyer colluded with the client in order to perpetrate the fraud, the legal privilege is lost and the lawyer would be treated as a co-conspirator.

V INTERNATIONAL ASPECTS

i Conflict of law and choice of law in fraud claims

Criminal proceedings

In Spanish criminal proceedings, Spanish law is always applicable, provided that Spanish criminal courts have jurisdiction to investigate and try the case.

The general rule is that Spanish courts are competent for trying the case provided that the fraud was perpetrated in Spain. Spanish case law interpreted this requirement broadly and recently adopted the ubiquity principle, according to which the Spanish courts are competent when any of the elements of the fraud, including its effects, took place on Spanish territory.

Exceptionally, the Spanish criminal courts are also competent for trying fraud perpetrated abroad in the following cases:

  1. when the perpetrator of the fraud is a Spanish national;15
  2. where the fraud affects Spanish public interests (e.g., it involves the forgery of Spanish currency or official documents or the victim is a Spanish public entity); or
  3. when perpetrated by Spanish public officials based abroad.

Civil proceedings

In civil cases, the rules governing the jurisdiction of Spanish courts and the applicable law are complex and beyond the scope of this chapter. In addition to Spanish laws, EU Regulations and International Conventions on matters entered into by Spain must be taken into account.

Spanish courts are exclusively competent for trying the following cases:

  1. claims regarding real estate located in Spain;
  2. claims regarding the incorporation or winding-up of companies and legal persons domiciled in Spanish territory or regarding the decisions of their corporate bodies;
  3. claims regarding the validity of registrations made with any Spanish public registry; and
  4. those for the recognition and enforcement in Spain of foreign judicial decisions and arbitration awards.

In other cases, the general rule is that Spanish civil courts are competent when:

  1. the parties expressly or implicitly agree on submitting the case to their jurisdiction; or
  2. the defendant or any of the defendants are domiciled in Spain.

As to the applicable law, in fraud cases, the general rule is that the substance of the claim is decided in accordance with the law of the country where the event producing the damage took place.

Criminal proceedings

Through Act 23/2014 on the Mutual Recognition of Criminal Judicial Decisions in the European Union of 20 November 2014, Spain introduced a comprehensive piece of legislation into its internal legal system implementing all the EU Regulations related to the recognition and enforcement in Spain of judicial decisions rendered in criminal matters by the courts in other EU Member States.16

This Act regulates the following mutual recognition instruments:

  1. the European arrest warrant;
  2. judicial decisions imposing a penalty or security measure;
  3. judicial decisions on probation and supervision of probation measures and alternative sanctions;
  4. the European protection order;
  5. judicial decisions on the freezing of assets;
  6. judicial decisions on the freezing of assets and for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters;
  7. judicial decisions imposing financial sanctions; and
  8. the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

The execution of mutual judicial assistance and mutual recognition requests issued by criminal judicial authorities of third states are carried out in Spain in accordance with the provisions of any multilateral or bilateral treaty entered into with the corresponding state or, subsidiarily, in accordance with the principle of reciprocity.

These mutual judicial assistance mechanisms are aimed at freezing the defendant's specific assets once it has been determined that they are located in Spain. Conversely, these measures cannot be used to trace the defendant's assets and, in practice, locating the defendant's assets might prove difficult. For these purposes, it might prove useful to launch an investigation for money laundering in Spain against the perpetrator of fraud if there are indications that he or she could be hiding all or part of the proceeds in Spanish territory. In that case, the Spanish criminal courts in charge of the money laundering investigation would order every measure deemed necessary to trace, locate and freeze the laundered monies.

Civil proceedings

In accordance with the SCivPA, any party can file a request for protective measures before Spanish civil courts in respect of civil proceedings that are carried out abroad, according to the following rules:

  1. EU Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters if the main proceedings are being heard before the courts of another EU country; or
  2. if the request is filed in the framework of proceedings concluded in a non-EU country, the measures could be granted in Spain:
    • in accordance with an applicable bilateral treaty; or
    • provided that the Spanish courts do not have exclusive jurisdiction over the substance of the matter.17

ii Enforcement of judgments granted abroad in relation to fraud claims

The enforcement of the criminal aspects of the judgments granted abroad in relation to fraud matters (e.g., the sentence imposed on the offender) is carried out by the Spanish criminal courts in accordance with the EU regulations or international treaties regarding mutual assistance in criminal matters, as described above.

The civil decisions adopted in these judgments, by civil or criminal courts (e.g., the compensation of the victims), are enforced by the Spanish civil courts in accordance with EU Regulation 1215/2012 or the international treaties regarding mutual judicial assistance in civil matters. Spanish law18 also establishes specific proceedings for the recognition and enforcement in Spain of civil judgments rendered abroad, applicable when no EU regulation or treaty exists.

iii Fraud as a defence to enforcement of judgments granted abroad

Spanish law does not envisage fraud as a specific defence against the enforcement of judgments rendered abroad. The general cause for Spanish courts denying the recognition or enforcement of a judgment rendered abroad is that it contravenes Spanish public policy. Therefore, such a defence would only be successful if the fraud was perpetrated in a way that could lead the Spanish courts to consider that the judgment was contrary to Spanish public order.


Footnotes

1 Adriana de Buerba is a partner and Ángela Uría is a senior associate at Pérez-Llorca.

2 Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse, Regulation (EU) No. 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, Commission Delegated Regulation (EU) 2016/522 of 17 December 2015 supplementing Regulation (EU) No. 596/2014 of the European Parliament and of the Council as regards an exemption for certain third countries' public bodies and central banks, the indicators of market manipulation, the disclosure thresholds, the competent authority for notifications of delays, the permission for trading during closed periods and types of notifiable managers' transactions, Commission Delegated Regulation (EU) 2016/957 of 9 March 2016 supplementing Regulation (EU) No. 596/2014 of the European Parliament and of the Council with regard to regulatory technical standards for the appropriate arrangements, systems and procedures as well as notification templates to be used for preventing, detecting and reporting abusive practices or suspicious orders or transactions.

3 Article 249 of the SCC.

4 Spanish Supreme Court (Criminal Chamber) judgment No. 433/2015 of 2 July 2015.

5 In force in Spain since 25 August 1987.

6 Article 256 of the SCivPA.

7 Article 381 of the SCivPA.

8 Savings banks have become widespread in Spain in recent decades. As opposed to banks, savings banks do not have the legal form of a commercial company but rather, typically, are foundations or associations with no commercial purpose. For this reason, savings banks have had to dedicate a significant part of their profits to social causes. Another specific characteristic of Spanish savings banks is the lack of shareholders: the principal governing body is an assembly comprised of representatives of the regional government, the savings banks' employees, the depositors and other stakeholders.

9 Spain implemented the EU Third Directive on AML/PTF (Directive 2005/60/CE of the European Parliament and Council of 26 October 2005, developed by Directive 2006/70/CE of the European Commission of 1 August 2006) through Act 10/2010, 28 April 2010, on the prevention of money laundering and terrorist financing. Later, on 4 September 2018 and through Royal Decree 11/2018, of 31 August, Act 10/2010 was amended to implement the Fourth Directive, Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 (the EU Fourth Directive on AML/PTF). Currently, the Spanish government is in the process of implementing the EU's Fifth Directive on AML/PTF (Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU). The deadline for implementing this Fifth Directive is 10 January 2020.

10 Article 301 et seq. of the SCC.

11 Article 257 of the SCC.

12 Articles 259 to 261 bis of the SCC.

13 Article 250.1.7 of the SCC.

14 Article 542 of the SAJB and Article 416.2 of the SCrimPA, specifically for criminal proceedings.

15 Provided the following requirements are met: (1) the fraud is punishable in the country of execution; (2) the victim or the Spanish public prosecutor files a complaint in Spain; and (3) the perpetrator was not acquitted, pardoned or convicted abroad or, in the last case, that he or she did not serve the sentence.

16 (1) Framework Decision 2002/584/JHA of 13 June 2002 on European Arrest Warrant; (2) Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence; (3) Framework Decision 2005/214/ JHA on the application of the principle of mutual recognition to financial penalties; (4) Framework Decision 2006/783/JHA on mutual recognition of confiscation orders; (5) Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters; (6) Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions; (7) Framework Decision 2008/978/JHA on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters; (8) Framework Decision 2009/299/JHA enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial; (9) Framework Decision 829/JHA on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention; and (10) Directive 2011/99/EU of the European Parliament and of the Council on the European protection order.

17 Article 722 of the SCivPA.

18 Act 29/2015, 30 July on international legal cooperation in civil matters and SCivPA, 25th and 26th Final Provisions.