Making or accepting presents in the context of business relationships: what should companies that do business in Spain know about it (boundaries of the criminal offense)

However, pursuant to a 2010 amendment of the Criminal Code these practices have become, under certain circumstances, a criminal offence.

Specifically, making or accepting a present or benefit, of any kind, as a compensation to unduly benefit a third party in relation to a commercial transaction, is prohibited.

The present or benefit has to be of sufficient value as to be able to influence the commercial decisions of the person that receives it. Therefore, no criminal offence is committed (i) if the present is not made in the context of a commercial relationship, (ii) if it has not a relevant value (i.e. a pen or a sticker with the name of the company) or (iii) if it is socially considered a courtesy practice (i.e. inviting a client to lunch, or sending the client a bottle of wine for Christmas).

We would recommend companies doing business in Spain to stick to the following guidelines to be always on the safe side:

a) Never make/accept monetary presents (do not confuse this with commercial discounts or sales discounts –rappels- which are legitimate and legal).

b) Never request/offer a commercial compensation for the presents made/received.

c) Establish an internal policy concerning the making/acceptance of presents and make it available to all potentially affected employees. The policy should establish whether they can offer/accept presents and, if relevant, the procedure to do so, as well as the kind of presents and up to which value can be made/accepted.

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