Competition Law in Spain: Ideal vs. Real Crime & Apparent Contest
Lesson 13: The Competition Law
Article 25 of the Spanish Constitution
This article refers to the imposition of administrative and criminal law sanctions. The principle of “ne bis in idem” operates both between different legal areas and within domestic criminal law. This principle ensures that the same aggravating factor or element cannot be used to punish twice. For example, if the aggravating circumstance of cruelty has already been applied in a criminal case, it cannot be re-applied as a general circumstance (e.g., in robbery with intimidation, the use of weapons cannot be considered an aggravating factor if already considered).
However, there are cases where multiple legal standards can be applied to cover the entire scope of an unlawful act. The choice of applicable rules depends on the specific circumstances, the desired outcome, and the available penalties. Sometimes, applying two rules is necessary to fully address the unlawful act, even if one rule alone is insufficient. This situation is known as an ideal or real contest of crimes.
Ideal vs. Real Contest of Crimes
Ideal Contest
An ideal contest occurs when a single act results in the commission of multiple offenses or crimes. In such cases, the penalty applied corresponds to the most serious offense, in its upper half, without exceeding the sum of the individual sentences.
Real Contest
A real contest occurs when distinct acts by the subject lead to different results. For example, robbing a bank and then shooting a guard constitutes three separate offenses (theft, murder, and assault). In this case, penalties for all actions are added, applying different provisions for each crime, as outlined in Article 73 and following of the Criminal Code.
Apparent Contest of Crimes or Laws
An apparent contest arises when two legal precepts seemingly apply to the same facts, but applying only one is insufficient to cover the entire scope of the unlawful act, as it would preclude the application of the other. Article 8 of the Penal Code provides rules to resolve such situations.
Relationship of Specialty
When two standards exist—one general and one specific—the special law prevails. The specific standard acts by delimiting particular assumptions, demanding more restrictive requirements for application. For example, homicide is the general rule for crimes against life.
Subsidiarity
Subsidiarity dictates that one rule applies only in the absence of another, either explicitly stated in the law (express subsidiarity) or derived through interpretation (implied subsidiarity).
Express subsidiarity is when the law explicitly states when a rule applies (“in the absence of application of the preceding Article” or “when it is deemed appropriate to apply the previous article”).
Tacit subsidiarity is when no explicit precept exists, but it is derived through interpretation by the judge, considering the facts and the content of the applicable rules. An example is complicity, which can be necessary (the accomplice’s help is essential for the crime) or simple (the collaboration could be substituted by any other person). In this case, simple complicity applies when the complicity is not deemed necessary, representing a case of tacit subsidiarity.
Relationship of Consumption
Consumption occurs when one law encompasses the valuation or devaluation of the act, thus overriding another law. The more comprehensive criminal provision prevails, as it encompasses the entire content of the other. For example, damage covers theft.
Consider the “iter criminis” (stages of a crime): ideation (no danger), followed by the external phase, divided into preparatory acts and execution (attempt). The punishment for the crime itself covers the attempt.
Another example is Article 485 of the Penal Code, which addresses the murder (including attempts) of the royal family. Here, different legal rights may be affected, but the acts are hardly distinguishable.
Alternativity
This rule applies when the previous ones are not applicable and has generated much debate. Some argue that only the preceding three rules are necessary. However, some doctrinal interpretations suggest this rule resolves cases where the same legal right is violated, and the crime is addressed from different perspectives within the Code.
This principle originated in the theory of Binding standards. For example, freedom of action can be violated through coercion, threats, or alternative conditions. The rule addresses situations where multiple precepts could apply, each punishing the injury or endangerment of a legal right, but the specifics of each crime differentiate them. The legislature may assign the same penalty for different forms of threat, but each offense, while sharing a common element, may be punished differently.
This principle aims to avoid unjust punishment, penological inconsistencies, or impunity. For example, sexual harassment (Art. 184.2). When two rules could apply, the most serious provision prevails (Article 145.1 on attempted abortion and 157 on harm to the fetus).