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Nature and Delimitation

Defining the scope between the offence of misappropriation (former Article 252, now Article 253 of the Spanish Criminal Code) and the corporate offence (former Article 295, currently Article 252) has not been straightforward. The existence of an apparent overlap between the respective wrongful conduct covered by both provisions has complicated their interpretation, and several rulings of the Supreme Court have attempted—though not always from the same perspective—to provide interpretative guidelines that offer legal certainty and security.

It should be noted—see Supreme Court Judgments (SSTS) 91/2013 of 1 February and 294/2013 of 4 April—that there exists a line of case law explaining that the relationship between both provisions is understood and resolved through what appears to be a conflict of legal provisions, which must be settled according to the principle of alternativity, that is, by applying the offence that carries the more severe penalty. In this regard, the Supreme Court stated that former Article 535 of the Criminal Code was not replaced by the new Article 295, but rather by Article 252, which substantially reproduces—with some clarifying additions—the content of the former provision. Consequently, the offence of misappropriation remains in the new legislation with the same scope, and even with a slightly broader scope than it had under the 1973 Criminal Code.

Indeed, Article 295 of the Criminal Code was intended to complement the sanctioning provisions of Article 252, not to establish a more lenient sanctioning regime for acts that were and still are considered offences of misappropriation, even when they are committed within a corporate context. It will therefore be inevitable that certain acts of disloyal or fraudulent administration may simultaneously fall within the scope of Articles 252 and 295 of the Criminal Code in force, since the offences described therein resemble intersecting circles, meaning that both provisions partially overlap. However, this conflict of provisions must be resolved in accordance with Article 8.4 of the Criminal Code, by choosing the provision that imposes the more severe penalty (SSTS 2213/2001 of 27 November; 867/2002 of 29 September; 1835/2002 of 7 November; and STS 37/2006 of 25 January).

Nevertheless, there are decisions that have sought a criterion of differentiation between the disloyalty involved in the conduct described in Article 252 of the Criminal Code—misappropriating money—and that present in Article 295—fraudulently disposing of the company’s assets or funds. This distinction is based on the limits of the legal title under which the act of disposition is carried out, that is, when the offender exceeds the powers granted by the title of receipt, assigning the assets a final destination different from that agreed, imposed, or authorised. An example of this interpretative approach is Supreme Court Judgment 915/2005 of 11 July.

On other occasions, this conduct has been described as a form of disloyal management. It is true that a person who acts in this way betrays the trust of the person who delivered something to them under legal titles such as administration, deposit, commission, or similar arrangements, all of which involve a certain expectation that the subsequent conduct of the recipient will remain within the agreed limits. In this sense, the conduct may indeed be described as disloyal (in fact, any misappropriation entails a breach of trust). However, when dealing with company directors or members of a board of directors, misappropriation cannot be confused with the offence of breach of trust in corporate administration provided for in former Article 295 of the Criminal Code within the category of corporate offences.

That offence referred to de facto or de jure directors, or to partners of any company already constituted or in formation, who carried out conduct causing damage through the abuse of the functions inherent to their position. This requirement meant that the disloyal administrator under Article 295 always acted in their capacity as administrator and within the procedural limits established for their functions, although they did so disloyally for their own benefit or that of a third party by fraudulently disposing of company assets or incurring obligations on behalf of the company, thereby causing the legally relevant harm. The excess committed was therefore intensive, in the sense that the conduct remained within the administrator’s powers, although exercised improperly.

By contrast, misappropriation, which could also be committed by the same individuals who could be perpetrators of the offence of breach of trust under Article 295 (e.g., directors or board members), involved—and still involves—the disposal of assets entrusted to the administrator that exceeds the powers granted to them, likewise causing damage to a third party. In short, as previously stated, these were different forms of conduct. Although both are disloyal from the standpoint of breach of trust, in misappropriation the disloyalty consists of acting outside what the title of receipt allows, whereas in the other offence the disloyalty arises from exercising the administrator’s powers in a way that, under the conditions of Article 295, harms the company but does not exceed the limits inherent to the position of administrator (see, in the same sense, SSTS 841/2006 of 17 July and 565/2007 of 4 June).

Thus, while under the former Article 252 of the Criminal Code the act of disposal constituted a purely factual act that exceeded the legal limits of the possessory title granted, in the corporate offence under former Article 295 the person obligating the company or disposing of its assets did so in the exercise of a genuine legal power, a decision-making capacity legally recognised. The wrongful nature of the conduct lay in the fact that this power was exercised abusively, with abuse of the functions inherent to the position. The functional excess was not quantitative, in the sense of exceeding authority, but rather teleological, involving a deviation from the intended objective and the resulting outcome.

According to this reasoning, it was entirely possible to determine whether Articles 252 or 295 of the Criminal Code applied without resorting to the solution suggested by the existence of an apparent conflict of provisions. These were provisions that did not entail a double assessment of the same criminal act. In each case there was a clear difference regarding the legal meaning of exceeding the powers granted to the individual or corporate administrator. There would therefore be no conflict of provisions, since the same act would not be subsumable under two different offences simultaneously.

However, the reform introduced by Organic Law 1/2015 of 30 March has reformulated the historical understanding of the offence of misappropriation and its relationship with the offence of breach of trust, leaving Article 295 without content and introducing new wording for Articles 252 and 253, thereby diversifying criminal liability into two newly drafted provisions. Article 252—under the heading “Breach of Trust (Dishonest Administration)”—punishes with the same penalties as those established for the offence of fraud those who, having powers to administer another’s assets derived from the law, entrusted by authority, or assumed through a legal transaction, breach those powers by exceeding their exercise and thereby cause damage to the administered assets. Article 253, with the same reference for punitive purposes to the penalties associated with the offence of fraud, punishes those who, to the detriment of another, appropriate for themselves or for a third party money, effects, securities, or any other movable property that they have received in deposit, commission, custody, or under any other title that entails the obligation to deliver or return them, or who deny having received them.