Criminal law and business
Criminal law in the context of businesses
Businesses can come into contact with law enforcement agencies in a variety of ways. For us, as a law firm specializing in white-collar crime, defense of members of corporate bodies or employees is part of our day-to-day business. However, investigations can also be directed against the company. At the same time, preventive measures can avert or significantly reduce reputational damage and financial losses.
H2W offers you more than just standard consultation. Thanks to our many years of experience in criminal defense and consulting onwhite collar crime , we can develop an optimal strategy for your defense together with you.
Sometimes advice requires more than just criminal law expertise. We have an excellent network and work closely with colleagues from various areas of business law and management consulting. We always find an optimal solution for your problem.
Company liability risks
Up to now there has been no “real” corporate criminal law in Germany. Given the current developments towards the creation of a so-called Association Sanctions Act, it is important to be preventively well positioned.
Even today, companies can be subject to criminal offenses.
According to the current legal situation, the relevant norms are largely part of the Administrative Offenses Act (OWiG). Section 30 of the OWiG enables the authorities to impose fines of considerable magnitude, possibly in the millions, if a manager has violated duties that also affect the company as such or the legal person or association of persons has been or was intended to be enriched (company-related offenses).
Access to the company’s assets is currently at the discretion of the authorities (principle of opportunity).
Companies can be held accountable as secondary participants in criminal proceedings.
It is therefore important not only to advise corporate bodies and legal representatives on individual criminal law, but also to advise the company itself.
In addition to the fine, there is also an option to access companies via the right to asset seizure. The principle behind this is: “Crime shouldn’t be worth it.” Asset seizure therefore enables the law enforcement authorities to have extensive access to assets that have been “obtained” from a crime (gross principle).
New corporate sanctions law (Association Sanctions Act)
Legislators have long been discussing the creation of a more corporate-oriented sanction system. The background to these efforts is, in particular, from the government’s point of view, insufficient access to the economic benefits obtained. A fine of up to 10 million euros can be imposed under Section 30 (2) OWiG, and in accordance with the exception provision in Section 17 (4) OWiG, even more. Nor does a legal succession change anything in terms of the possibility of state access (Section 30 (2a) OWiG).
With the ministerial draft of an Association Sanctions Act (VerSanG), these access options are to be significantly expanded again. The law is intended to stand independently alongside the existing provisions of the Criminal Code and the law on administrative offenses. The term “association” is intended to cover legal entities under public and private law as well as partnerships with legal capacity as well as associations.
In the fine proceedings, the prosecution has so far been at the discretion of the authorities (principle of opportunity). This leeway should no longer exist in the new Association Sanctions Act, there should be an obligation to prosecute (principle of legality).
According to the current draft, companies should be able to be held accountable to a great extent. In addition, a violation according to the specifications of the draft can ultimately even lead to the dissolution of the association. In contrast, further rights will be granted in criminal proceedings in the future – the rights of the accused should also apply to the company.
In addition, companies are to be drawn more into the public eye in the future – public disclosure of violations by companies is planned.
In addition, there are also provisions in the draft bill that can favor the outcome of the proceedings.
Thus effective compliance measuresare also expressly to receive positive consideration in the future.
The importance of internal investigations, for which there have so far hardly been any legal requirements, is also particularly controversial. A regulation to create uniform standards would be welcome in principle. According to the draft, companies are almost obliged not only to carry out investigations, but to make the results available to the investigative authorities in order to mitigate or prevent subsequent sanctions. The company can be instrumentalized as an extension of the authorities and for investigations against itself.
The further implementation of the draft remains to be seen and continues to be viewed critically. Early advice is important in order to be optimally positioned when the law comes into force.
Representation of bodies and management
In addition to the company itself, when a criminal offense is initially suspected in the company, the bodies and legal representatives of companies often come into focus. In addition to the supervisory board, the executive board and the management, investigations can also quickly be directed against executives and management. In addition to liability for a breach of supervisory duties by organs and legal representatives according to Section 130 OWiG, fines may also be imposed on managers according to Section 9, 14 OWiG.
Competent and holistic advice and a closely coordinated defense strategy are necessary. We do not want to shift responsibilities back and forth, but rather to avert damage to everyone involved. With a view to the amount of fines that can be devastating in some cases, the early involvement of an attorney for the outcome of the investigation is usually decisive. With our expertise in the areas of white-collar crime, administrative offense law and compliance, we can avert unjustified fines and at the same time provide preventive advice.
Prevention - compliance consulting (focus on criminal law)
Since the so-called Siemens judgment (source) at the latest, preventive measures have been an integral part of providing criminal law advice to companies. The term “compliance” has meanwhile developed into a buzzword in business but also among law enforcement agencies.
First of all, compliance means nothing more than “adherence to rules”, which is actually something that goes without saying.
Nevertheless, what is meant by this and what added value a good compliance strategy can have in companies often remains abstract. H2W offers you compliance consulting tailored to your company. Not every company needs a large compliance department with a huge budget. In contrast, knowledge of criminal and administrative offense risks is essential for every company in order not to be (unnecessarily) targeted by the law enforcement authorities and to minimize liability risks. We would be happy to analyze your company’s needs in the area of preventive measures and support you in their implementation. You determine the focus. Mobbing and AGG requirements are topics in addition to fighting corruption and economic crimes. In particular, we check which mechanisms and guidelines are in place in the company and support training in the company. We also take into account the international requirements of the UK Bribery Act and the Foreign Corrupt Practices Act (FCPA).