régimen sancionador

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Royal Decree-Law 15/2020, of April 21, (“RD-L 15/2020”) provides significant procedural and substantive aspects regarding the Labor and Social Security Inspectorate (“ITSS”).

Regarding procedural aspects, RD-L 15/2020 suspends all deadlines applicable to the ITSS scope of action, except where the ITSS must act in COVID-19-related matters or to protect the general interest. The purpose of this deadline suspension is to ensure legal certainty and consistency with the general deadline suspensions for public authority procedures.

As for the deadline suspension for ITSS action, under the 2nd additional provision of RD-L 15/2020, the time limit for ITSS’ monitoring actions, requirements and orders will not run during the state of emergency (i.e., since March 14, 2020) or during any possible extensions.

This temporary deadline suspension will not apply to any monitoring actions, requirements and standstill orders(i) closely connected with the grounds for the state of emergency, or (ii) indispensable due to their seriousness or urgency to protect the general interest. In case of (i) or (ii), the ITSS must provide duly substantiated reasons and submit them to the party concerned.

RD-L 15/2020 also suspends time barring periods for liability claims regarding compliance with labor and social security rules and regulations subject to Royal Decree 928/1998, of May 14.

Regarding substantive aspects, Royal Decree-Law, of March 27, provided a penalty system adapted to the current circumstances. This penalty system included monitoring and penalty mechanisms preventing fraudulent attempts to collect undue benefits.

RD-L 15/2020 (i) redefines the infringement categories laid down in the Labor Penalties and Infringement Act (“LISOS”); (ii) specifies the employer’s liability regime, and (iii) provides the penalties for companies that file applications with false or inaccurate information.

Both the preamble and the 4th additional provision of Royal Decree-Law 9/2020, of March 27, require the Public Employment Service (“SEPE”) to cooperate with the ITSS. In particular, SEPE must notify the ITSS of any signs of fraudulent attempts to collect undue unemployment benefits.

Additionally, the ITSS, in cooperation with the Spanish Tax Agency and enforcement authorities, now has the power to verify the existence of the grounds provided in the requested temporary redundancy plans based on the grounds set out in Articles 22 and 23 of Royal Decree-Law 8/2020, of March 17.

Regarding the General Treasury of Social Security (“TGSS”), Article 34 of Royal Decree-Law 11/2020 on the moratorium for employer social security contributions provides penalties for any applications from companies or self-employed workers including false or inaccurate information. Reporting a false or inaccurate economic activity to the TGSS (i) in the company’s registration application; (ii) in the employee registration form for the relevant special social security regime, or (iii) in any subsequent change of details, will qualify as false or inaccurate information.

Regardless of the potential administrative or criminal liability of companies or self-employed workers, under the Regulation on Social Security Payments, companies and self-employed workers will be required to pay the relevant surcharge and interest for any contributions for which the moratorium has been misapplied.

Accordingly, Article 23(1)(c) LISOS on serious infringements by self-employed workers (for which there is a fine of up to €187,515) has been amended. The prior concept of misrepresentation is now defined as “stating, providing, reporting or entering false or inaccurate information providing workers with undue benefits.

Article 23(2) LISOS has also been amended, and there is a new paragraph (3) in Article 43 regarding liability of companies for social security infringements. Article 43(3) now provides that, in case of the infringement set out in article 23(1)(c) LISOS, “companies will be held directly liable and required to repay any unduly received amounts.”

A different issue is how these amendments affect corporate actions carried out before April 23, 2020, the date of entry into force of RD-L 15/2020. Note that the principle of non-retroactivity of unfavorable law applies under Article 25(1) of the Constitution.

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