The judge of the National Court that instructs the Tándem-Villarejo case, Manuel García-Castellón, has agreed this Thursday to dismiss Repsol and CaixaBank, as well as the president of the first, Antonio Brufau, and the former president of the second, Isidro Fainé.

On April 15, García-Castellón attributed an alleged bribery crime to Brufau and Fainé for the hiring of former commissioner José Manuel Villarejo by their respective companies to investigate the share syndication agreement reached between the former president of Sacyr Luis del Rivero and the Mexican oil company Pemex.

Subsequently, on July 8, it gave Repsol and CaixaBank the status of being investigated as legal persons, at the request of the Anti-Corruption Prosecutor’s Office. Both entities, as well as their top managers, have defended the legality of their behavior in communications to the CNMV.

In a resolution known today, the judge agrees on the provisional dismissal of the case regarding Fainé and Brufau “as his participation in the hiring of the company Cenyt”, belonging to Villarejo, is not recorded.

It points out that the documents provided by the companies show that “hiring was not within the scope of the president’s control, but in that of their security directors “, as Brufau and Fainé explained to the judge on May 7, when they did the ride it to the National Court.

“Without indications that point to the presidents of the companies intervening directly in the investigated events, it is not possible to transfer to said presidents an obligation of corporate supervision and oversight that is delegated to the competent bodies for this,” says the instructor.

Remember that in our legal system “there is no objective liability by reason of the position and, in this sense, it indicates, it is not possible to maintain the imputation of the most responsible of both companies for the mere fact of the position they hold, in lack of solid evidence of their direct or indirect participation in the investigated facts ”.

“Effective” prevention system

Regarding Repsol and CaixaBank as legal persons, the judge considers that both “had established, at the time of the events, [2011-2012], a effective prevention and compliance systemz, without the accusations having contributed elements of charge that allow to conclude the existence of a structural defect in the prevention, surveillance and supervision models in force in the companies “.

The documentation provided by the entities “makes it possible to verify that implanted prevention mechanisms existed and were adequate, regardless of the final occurrence of the facts under investigation ”.

For this reason, it considers that the exemption of criminal responsibility provided for in article 31 bis of the Penal Code concurs, since, through the documentation provided and the statements of the appointed representatives, “it is proven that CaixaBank and Repsol had a regulatory compliance plan and culture of compliance implemented in the entity at the time of the events under investigation “.

“Both companies had adequate measures in place to prevent the commission of the crimes investigated within their activity,” he concludes.


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