Article 308 Spanish Criminal Code: Subsidy and public aid fraud

1. Whoever obtains subsidies or aid from the public administrations, including the European Union, in an amount or of a value exceeding one hundred thousand euros by falsifying the conditions required for their grant or by concealing those which would have prevented it, shall be punished with imprisonment of one to five years and a fine of the amount of that sum up to six times that sum, unless that person carries out the repayment referred to in paragraph 6.

2. The same penalties shall be imposed upon whoever, in the conduct of an activity funded wholly or in part with funds of the public administrations, including the European Union, applies them in an amount exceeding one hundred thousand euros to purposes other than those for which the subsidy or aid was granted, unless that person carries out the repayment referred to in paragraph 6.

3. In addition to the penalties indicated, there shall be imposed upon the person responsible the loss of the possibility of obtaining public subsidies or aid and of the right to enjoy tax or social security benefits or incentives for a period of three to six years.

4. If the amount obtained, defrauded or improperly applied does not exceed one hundred thousand euros but exceeds ten thousand, a penalty of imprisonment of three months to one year or a fine of the amount of that sum up to three times that sum shall be imposed, together with the loss of the possibility of obtaining public subsidies or aid and of the right to enjoy tax or social security benefits or incentives for a period of six months to two years, unless that person carries out the repayment referred to in paragraph 6.

5. For the purposes of determining the amount referred to in this article, the total obtained, defrauded or improperly applied shall be taken into account, irrespective of whether it comes from one or from several public administrations jointly.

6. The repayment referred to in paragraphs 1, 2 and 4 shall be taken to have been made where the recipient of the subsidy or aid proceeds to return the subsidies or aid improperly received or applied, increased by the interest for late payment applicable in matters of subsidies from the moment at which they were received, and where that is carried out before notification has been given of the commencement of verification or control proceedings in relation to those subsidies or aid or, where such proceedings have not taken place, before the public prosecutor, the State counsel or the representative of the regional or local administration concerned lodges a querella or a complaint directed against that person or before the public prosecutor or the investigating judge carries out steps which permit that person to have formal knowledge of the commencement of proceedings. The repayment shall prevent the prosecution of that person for the possible instrumental falsifications which, exclusively in relation to the debt which is the object of the regularisation, that person may have committed prior to the regularisation of the position.

7. The existence of criminal proceedings for one of the offences of paragraphs 1, 2 and 4 of this article shall not prevent the competent administration from demanding by administrative means the repayment of the subsidies or aid improperly applied. The amount to be repaid shall be taken to have been fixed provisionally by the administration, and shall afterwards be adjusted to what is finally determined in the criminal proceedings.

Nor shall the criminal proceedings halt the action for recovery of the administration, which may commence the steps directed at recovery unless the judge, of its own motion or at the instance of a party, has ordered the suspension of the enforcement proceedings upon the provision of security. If security cannot be provided in whole or in part, the judge may exceptionally order the suspension with a total or partial dispensation from security if it finds that the enforcement might cause irreparable harm or harm which is very difficult to repair.

8. Judges and courts may impose upon the person responsible for this offence the penalty of the next lower degree or of the two next lower degrees, provided that, before two months have elapsed from the judicial summons as a person under investigation, that person carries out the repayment referred to in paragraph 6 and acknowledges the facts before the court. The foregoing shall likewise be applicable in respect of other participants in the offence other than the person under the obligation to repay or the perpetrator of the offence, where they cooperate actively in obtaining evidence which is decisive for the identification or apprehension of other persons responsible, for the complete clarification of the criminal acts or for the ascertainment of the assets of the person under that obligation or of the person responsible for the offence.

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.