Corruption – minimizing risks through compliance?

Recently, German gazettes have been well-filled with reports of corruption in involving German companies: the former director of the Sparkasse / Bonn (among others) faces bribery charges surrounding the subsequent use of the Cologne exhibition halls for the tv-channel-group RTL (here). Furthermore, several (!) high-ranking managers of Adidas seems to have promised US-high-school athletes money to convince them to play at certain universities (here). However, the current highlight of the discoveries is undoubtedly Airbus: the group is said to be involved in bribery payments in connection with aircraft sales (here). In the public, and also in the aforementioned press reports, the main focus is on the offenders. This should not obscure the fact that the companies concerned can also suffer severe economic damages. However, a recent ruling by the Federal Court of Justice (BGH) could at least point to a risk-minimization …

German criminal law so far does not provide for a separate criminal liability for companies, therefore the most serious sanction for companies comes from the German Administrative Offences Act (“Ordnungswidrigkeiten-Gesetz, OWiG”). The provisions of  §§ 30, 130 OWiG enable the public prosecutur to impose sensitive fines on companies, as aptly exemplified by the case of a fine of Euro 395 million against Siemens AG in 2008. Hence, in addition to the economic damages, which are often associated with corruption, e.g. in the form of economically disadvantageous contracts, a fine may still be imposed. In the worst case, such a fine could threaten the company’s existence.

For these reasons, but also because the discussion about corporate governance and compliance gathered speed with the aforementioned Siemens-scandal more than a decade ago (see also here), one would actually no longer expect the news listed at the beginning of this article. With a view to the countless compliance-programs, -certifications and -commissioners, the current accumulation of cases is rather surprising – and will most probably lead (together with the VW emission scandal) to a revival of the discussions about the institution of a proper corporate criminal law in Germany (see here).

While the criminal courts in previous cases merely sanctioned the criminality of organizational misconduct in companies / groups according to §§ 30, 130 OWiG without taking into further considerations any arguements in favour of the respective company, the German Supreme Court (in criminal proceedings, “Bundesgerichtshof”, “BGH”) in a recent decision as of May of this year clarified that an “efficient compliance-management-system” implemented in order to avoid violations of legal provisions must have at least a (reducing) effect for the determination of the fine. With this judgement, the BGH for the first time points out how a company can effectively protect itself against the risk of fines pursuant to §§ 30, 130 OWiG. Backed with this positive connotation, future implementations of compliance-management-systems in companies are likely to gain new momentum.

BGH, Urt. v. 9.05.2017 – 1 StR 265/16

Anti-Korruptions-Managementsysteme (ISO/DIS 37001:2016)

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