Criminal responsibility for the bideastagration and forbearance in criminal proceedings: a milestone judgment in Spanish case law

Europe is not foreign to criminal liability for BID -KRGING. There are even national crime codes that are the cartels and offer city spaces as a criminal offense (see criminalization of cartels and offer rigging disruptions: a focus on depots | OECD). Nevertheless, cases are rare and judgments that fix this topic are scarce. However, a current example from Spain shows the way to end criminal undercover.

On February 5, 2025, the criminal department of the Spanish national audience (hereinafter “National audience“) A judgment submitted in the so-called” fire cartel “and twelve defendants for participating in a long-lasting cartel on the airship navigation market for fire brigade for twelve accused for participation in a long-lasting cartel in the air navigation.

Facts and violations

Between 1999 and 2018, a group of business people from the fire fighting air navigation sector shared several public tenders from the Spanish administration. The cartel was orchestrated by an union.

The national audience lists a number of behaviors, e.g. (ii) price fixation of tenders; (iii) the use of kick-out mechanisms; Or (IV) The application of fraudulent techniques to increase the procurement costs. All of these versions match the usual BID -IGGING systems.

In some cases, as in the classic Kansei Dango Japan's consultation in cooperation with authorities or civil servants was carried out in exchange for gifts, hospital events and other attentions.

The national audience has explained the inspection of the following continuous crimes over nineteen years:

• Concerted agreement to change the prices for public tenders (Article 262 of Bio -recht 10/1995 of November 23, 1995 of the Spanish Criminal Code (below “,”CC“)) Through the parts of tenders from 1999 to 2018.
• Corrupt practices (Article 404 CC), if it has been proven that civil servants have given various orders to companies that have the procedure in procurement regulations such as: B. violated the technical requirements.
• embezzlement (Article 432.1 and 2 cc) After the acquisition of public funds with the inappropriate and arbitrary payment of invoices approved by civil servants, without contractual support and their processing, the actual services did not reflect and was therefore improper.
• Fake official documents (Article 390 CCM) with regard to payment inappropriate and arbitrary invoices for unjustified services.
• briberyBoth passive (Article 419 CC) and actively (Article 424.1.3 CC): In this case, the crime of active bribery has been demonstrated, since the bribes with the aim of receiving better contracts for the benefit of the company, and the criminal offense Passive bribery by inquiring and receiving compensation in the exchange for the adoption of decisions on the award, change and expansion of contracts.

Leading in criminal proceedings as a defense against criminal liability

The national audience pointed out that the managing director of one of the convicted companies after he had been separated from the behavior, the anti-corruption prosecutor in Valencia, the events and crimes in which he had participated in and had been registered and in he had participated and those in which he had justified knowledge. He also actively cooperated to the judicial authority and the police when transferring all information and provided valuable documentation keys to clarify the behaviors carried out.

In this regard, the director mentioned demanded relief or criminal fortune in Article 262.3 cc.

Similar to Articles 65 and 66 of the Spanish Competition Act 15/2007, Article 262 .3 CC, a liberation from the crime for the change in prices for public tenders for natural persons and representation of a company have taken part in competitive practices if certain conditions are met:

a) Active cooperation with the competition authority that deals with the case;

b) The companies or natural persons have submitted an application for exemption from payment of the fine.

c) Such an application was submitted before the companies or natural persons were informed that they were examined.

d) Active cooperation with the judicial authority or the public prosecutor.

The above -mentioned article was introduced by the organic law 14/2022, in which the implementation in national law of ECN+ Directive 2019/1 was classified in order to function more effectively and ensure the funds to enforce competitive rules.

In this context, the national audience makes it clear that although this change came into force on January 22, 2023 and the actions persecuted between 1999 and 2018, its retroactive application as a favorable criminal law does not speak a problem, which also exists, beyond this No doubt that conditions c) and d) that are cited in the previous paragraph are met. However, the problem arises in terms of conditions a) and b) and the submission of a complaint to the public prosecutor corresponds to a notification and the application for exemption from payment of a fine to the CNMC (Spain's National Competition Authority).

For this purpose, the national audience describes the relief program or the exemption from the payment of administrative penalties. This system provides for an exemption from paying the fine for the company or the natural person, who is the first evidence of the existence of collusive practices. In this regard, the national audience confirms that the goal of the European Union and the national legislator is the same, namely those who report the existence of cartels, also in the criminal association. The court therefore assumes that the requirements for the application of criminal relief have been met.

The introduction of a contract ban with public administrations

The public prosecutor and the public prosecutor asked for the imposition of companies that are constantly regarded as the constant crime of the price fixation in public tenders, for a one -year ban on contract with the public administrations.

The debate focuses on the time expansion of the ban, since there is a consensus that the criminal behavior took place in the fire fighting sector.

The national audience goes from criminal activity almost twenty years and harmed the free competition in the fire fighting sector seriously.

The court initially puts a burden on the effects on employees and the economic consequences for the companies concerned and the public sector. Second, the court positively evaluates the adoption of the company's compliance programs and thus establishes the introduction of the ban on contract with public administration after nine months instead of one year. This is the first time that a criminal court imposes this ban in Spain for a criminal offense of BID -Rigting.

Other examples in Spain

This is not the first time in Spain that the national public prosecutor's public prosecutor's office has filed a complaint for the Commission for Major Market and Consumer violations.

In this regard, the public prosecutor initiated a procedure in which a main territory and four of its managers of the Commission of a Crime against the market and consumers in articles 281 and 288.1 and 2 CC unusual price increase of the electricity at the end of 2013.

However, the national audience was in its judgment of January 4, 2024 (appeal number 11/2022, ECLI: ES: on: 2024: 52) The defendants were more free to investigate that the maximum price was not achieved, the evaluation of the existence of a crime was not possible.

In recent times, in a case that is still pending in front of the national audience, the public prosecutor's office in June 2024 had the accusation of a consumer association against a large energy supplier for a suspected crime for abusive increase in energy production prices for offers that during the COVID-19 pandemy Wholesale market market.