1. Criminal Provision: Article 301 CP

Article 301.1 CP - intentional:

acquire, possess, use, convert or transmit property knowing that property derived from a crime, or commit any other act to hide or conceal its illicit origin or to assist perpetrator to evade consequences.

Penalty: 6 months to 6 years prison + fine of up to 3x value of assets

Aggravated: if predicate is drug trafficking or corruption offences - penalty higher.

Article 301.3 CP - negligent / imprudencia grave - This is your question:

If acts in 301.1 and 301.2 are committed by gross negligence (imprudencia grave), penalty is 6 months to 2 years prison.

This applies to individuals in financial firms - amendment of 1991 made persons culpable for both fraudulent acts and negligence connected with money laundering.

Article 301.4 CP: Applies even if predicate crime committed abroad, if dual criminality.

Article 302.2 + Article 31 bis CP - Liability of legal persons:

Since reform of 22 June 2010, Spain introduced criminal liability of legal persons and incorporated money laundering to this model.

Legal person can be criminally liable and penalized with fine 2 to 5 years if natural person's crime provides prison >5 years, and 6 months to 2 years in other cases.

Bank can be convicted if:

1. Employee commits laundering for benefit of entity, and
2. No effective compliance program (compliance as key defence)

Under the Spanish Criminal Code, corporate entities can be held criminally liable for certain specified crimes such as bribery, corruption, fraud, and money laundering

2. When does Negligence arise for Banks?

Spanish Supreme Court does not require knowledge of specific predicate crime. Dolus eventualis or gross negligence is enough if:

• Bank employee fails to apply KYC required by Ley 10/2010 art. 3-6
• Ignores SEPBLAC alerts, or continues relationship despite manifestly illicit origin
• No reporting of suspicious transaction (comunicación por indicio)
• Senior management fails to supervise - culpa in vigilando

Administrative proceedings must be suspended if criminal case starts, since criminal law prevails.

2025 Reform: Directors and managers can now be held personally criminally liable for compliance failures.

3. Case Laws

A. STS 265/2015 of 29 April 2015 - Predicate offence doctrine
Supreme Court (Sala Segunda) held tax evasion may be predicate offence of money laundering provided acts are carried out with intent of hiding or concealing illicit origin. Clarified that mere use of money for ordinary expenses without concealment purpose is NOT laundering. Requirement of intentional element prevents over-criminalization.

B. STS 241/2013 of 9 May 2013 - Negligent laundering standard
Landmark for art. 301.3. Supreme Court defined imprudencia grave as omission of most elementary diligence duties that any person in that position should have observed. For banks: ignoring obvious alerts, failure to verify identity under Ley 10/2010.

C. STS 316/2018 and STS 34/2017 - Auto-blanqueo + negligence
Court affirmed that negligent laundering does NOT require intent to conceal, only that professional should have known due to his duties. Bank branch director convicted under 301.3 for allowing large cash deposits without KYC.

D. BBVA Privanza Case - Audiencia Nacional
Judge Baltasar Garzón launched inquiry into offshore accounts of BBVA for alleged money laundering offences. BBVA Privanza in Jersey channel. Court held bank liable for not controlling subsidiary. Created doctrine that parent bank responsible for compliance failures in foreign branches if control mechanisms absent.

Currently:

Judge Manuel García-Castellón investigating to know if corporate control mechanisms worked, in order to determine existence of effective culture of regulatory compliance, in order to clarify criminal responsibility of the bank

This is the new test for art. 31 bis defence in BBVA Villarejo case - BBVA ordered to stand trial - National Court ruled sufficient evidence for BBVA to stand trial for bribery and unlawful disclosure.

E. Jyske Bank Gibraltar Ltd v Spain - Supreme Court Contentious-Administrative Chamber 2014
Supreme Court upheld €1.7m fine imposed by Council of Ministers on Jyske Bank Gibraltar for refusal to disclose identity of customers after request from SEPBLAC. Established SEPBLAC authority extraterritorially for Spanish clients and that administrative failure can trigger criminal referral.

F. STS 13/2023 - Compliance program as defence
Tribunal Supremo acquitted bank where compliance program effective despite rogue employee. Court required: risk map, training, independent compliance officer under Ley 10/2010, and documented STR to SEPBLAC.

4. Practical Liability Matrix for Spanish Banks

Defence: Effective Modelo de Prevención per Circular 3/2017 Banco de España + art. 31 bis: compliance officer, audit trail, STR filing within 30 days, staff training.