The head of the Central Court of Instruction number 6 of the National Court, Manuel García Castellón, has agreed to reject the imputation of Iberdrola S.A for the different orders carried out over a decade to José Manuel Villarejo companies. He understands that it was Iberdrola Renovables, which is charged, which autonomously commissioned a project from the commissioner and assumed the invoices, without the participation of the parent company.
In a resolution to which ABC had access, García Castellón responds to the requests, among others, of the accusation made by the president of ACS Florentino Pérez. They also requested the imputation of Iberdrola S.A. for understanding that the directors who commissioned, authorized or paid for the works to Villarejo performed for the entire group from the parent company, and therefore the legal person had to respond for them and not only the subsidiary that benefited from those commissions.
Specifically, it is the “Wind” project, deployed as of 2011 in relation to the businesses that Iberdrola Renovables wanted to launch with Eolica Dobrogea in Romania. According to the investigation, it had a second phase in 2016, where the investigation "focused on the location of assets" of that company and its main shareholder "on which to execute the arbitration award favorable to Iberdrola Renovables Energía, S.A. that had been dictated."
"In relation to the specific Wind project -says the resolution- there is no evidence that the matrix determined the commission of the crime by proceeding with its commission. For these purposes, there is no evidence that the parent company had any involvement in the contracting of the Wind project itself, so it is not possible to transfer criminal liability to it as a legal entity for omissions in the control of a commission in which it has not participated, nor is it he knows no type of intervention».
In the resolution, the judge states that "unlike the circumstances that determined the citation of Iberdrola Renovables as investigated, where the connection between the company and the facts under investigation was clearly appreciated, in the present case it is not clear from the study of the actions a connection fact or reference fact that allows supporting the criminal liability of the legal person Iberdrola S.A.”
In this sense, it details that documentation generated in the execution of the orders was intervened on the subsidiary Villarejo, there are notes in their agendas related to the Wind project and invoices issued to Iberdrola Renovables. In addition, on the dates of that assignment, the president of the Iberdrola Group, and specifically of Iberdrola Renovables Energía, S.A., was Ignacio Sánchez Galán, who is charged; and the General Business Director was José Luis San Pedro, also under investigation.
Meanwhile, Villarejo's interlocutor was the then head of Security at Iberdrola, Antonio Asenjo, and "it has been identified" that apart from other positions in the business group, he was "a power of attorney for Iberdrola Renovables" and he himself acknowledged before the judge that the The assignment arose from the need expressed by a director of that subsidiary, not of the parent company Iberdrola S.A.
“The fact that Antonio Asenjo was Director of Security for the entire Iberdrola Group at the time of the events does not allow the criminal liability of the legal entity to be transferred to the parent company of the Group, which, following a hierarchical scale, would also find two steps above", exposes the judge.
“Based on these premises -he adds-, we do not identify a specific fact in the legal person Iberdrola S.A., which justifies its call to the process as investigated, without it being possible to base the imputation on an automatic or objective displacement of the responsibility from Iberdrola Renovables Energía SA to the parent company of the Iberdrola Group when it is the subsidiary itself that has directly and autonomously intervened in the events, making the order and paying the corresponding invoice«.
In the opinion of the instructor, who is aligned with the Anti-Corruption Prosecutor's Office in this matter, "it would be disproportionate in this case to attribute criminal liability to the parent company for acts carried out by a group company located two steps below, despite the fact that it could sense, as is usual in all Groups of Companies, the existence of a unitary action in the market».
Thus, it considers that it would be "unfounded" and "disproportionate" to require the parent company to "control all the actions of its subsidiary in order to try to avoid the commission of crimes when it comes to its own and exclusive action" of that same subsidiary company.
