The indictment of former president José Luis Rodriguez Zapatero for up to four crimes, including influence peddling, in the 'Caso Plus Ultra' marks the political agenda. Not least, during the session to question the Government in Congress, the spokesperson for ERC, Gabriel Rufián, directly questioned Pedro Sánchez asking: “Where does lobbying end and influence peddling begin?”, in reference to Zapatero's role in the Plus Ultra case investigated by the National Court.
The legal key lies in the abuse of power or privileged relationships. It is not necessary for direct bribery or the transfer of money to exist for influence peddling to be appreciated. It is enough for a person to take advantage of their political or institutional proximity to irregularly alter public decisions.
In practice, the line between legitimate lobbying and influence peddling is usually marked by factors such as transparency, the existence of personal favors, rigged public tenders, the use of privileged information, or the well-known “revolving doors”.
When political or institutional relationships are used to guarantee contracts, benefits, or administrative decisions outside of normal procedures, the ground ceases to be that of legitimate representation of interests and enters the criminal sphere. Therefore, international organizations and transparency experts have been demanding stricter regulation of lobbyists in Spain for years.
About the crime
According to current legislation, influence peddling is defined in the Penal Code, specifically in articles 428, 429, and 430, and occurs when a person uses their public position or personal relationship to unduly influence an authority or official or with the objective of obtaining a resolution or economic benefit for themselves or for third parties.
influence peddling
The Penal Code contemplates different penalties depending on who commits the crime and how the influence peddling occurs:
- When committed by a public authority or official (art. 428) the penalties can be between 6 months and two years in prison, a fine of up to double the amount obtained or sought, and special disqualification from public employment or office and from exercising the right to passive suffrage for 5 to 9 years.
- When committed by a private individual (art. 429) taking advantage of a personal relationship with a public official or employee, the penalties are between 6 months and two years in prison and a fine of up to double the amount obtained or sought. In this case, there is no public disqualification because the perpetrator does not hold public office.
- Offering influence (art. 430) over officials or authorities in exchange for money or advantages, even if it does not ultimately have any real influence, carries penalties of deprivation of liberty from 6 months to 1 year and a financial fine.
The power of influence
For its part, lobbying or interest representation activity can be defined as the work of a person, company, association, or organization that attempts to legitimately influence public decisions, laws, or policies by defending specific economic, social, or sectoral interests.
It is precisely in the nuance of "legitimate" that the difference between influencing and committing a crime lies.
A legal lobbying action usually involves: transparent meetings with public officials, presentation of proposals or reports, defense of sectoral interests, participation in public consultations, clear identification of who represents whom, and absence of illegal compensation.
The problem is that in Spain, unlike in the EU where this activity is widely recognized and regulated, there is still no comprehensive and fully developed state lobby law, which sometimes leads to ambiguities. Although there are transparency rules and registers in some institutions and autonomous communities, in Congress two initiatives in this regard remain blocked.
Sánchez referred to this paralysis in his response to Rufián. The president recalled that the Draft Law on transparency and integrity of interest group activities, which closed its amendment period last September, is awaiting the groups to agree on the amendments and draft the report that the Plenary will vote on.
The text submitted by the Government contemplated the creation of a Register of Interest Groups, of a mandatory nature, for relating to public personnel. In addition, it established the registration process, minimum information to be included, rights and obligations for those registered, the regulatory footprint report and a sanctioning regime.
In parallel, the Reform of the Congress Regulations to regulate the relationship between lobbyists and deputies is also awaiting the report from the relevant commission. The measure seeks to oblige interest groups to register in a Register to be able to carry out their influence activity and deputies to publish the content of their meetings, documents, and voting intentions.
The proposal promoted by the Socialist Group outlined a three-tier model of infractions for lobbyists, each with its corresponding sanctions. Furthermore, as far as their lordships are concerned, falsehoods in asset and activity declarations and the failure to submit them will be considered an infraction.