Company criminal law
Company criminal law is a highly topical subject. The significance of criminal law provisions is increasing for companies of any size and line of business.
For some time now there has been a draft law on association sanctions (for more information see german version). This law is intended to create a specific criminal liability for companies. This is a radical change in criminal law. Up to now, criminal proceedings could only be brought against natural persons. The new initiative is following a longstanding trend and is intended to apply to any company, regardless of its size.
The law already provides several regulations that may result in considerable fines and incidental financial consequences for the company.
We counsel companies and entrepreneurs, regardless of the type and size of the business, in all matters of criminal law. We represent and defend managers, senior and executive staff members and employees against charges brought against them individually.
In particular we represent damaged companies in the investigation of criminal offences committed against this company and in the context of asset recovery. We file for criminal charges and communicate with the investigation authorities.
Criminal liability risks for companies
Liability of managers and board of directors
It goes without saying that general offences apply to the actions of senior members of staff in companies. This can be of practical significance regarding tax evasion, embezzlement and fraud.
Sec. 14 Criminal Code: Acting as agent
In regard to special offences such as the delay in filing for insolvency or bankruptcy offences, section 14 Criminal Code provides that special personal characteristics that give rise to criminal liability also apply to a representative. This can be a member of a representing body, managing partners or legal representatives. Criminal liability not only applies to someone who commits an offence on their own but also whoever intentionally assists another in committing an offence. Especially in cases when several persons are involved the question of demarcating individual responsibilities arises. In some cases the offence of omission may apply: this may be the case if a superior does not intervene if they are aware of criminal offences committed by their subordinates.
Secondary participation
A company can be involved in criminal proceedings if it has obtained something through the offence and the confiscation of proceeds of crime are at issue.
Sec. 30 Act on Regulatory Offences: Regulatory fines imposed on companies
Requirements for regulatory fines imposed on companies
Regulatory fines imposed on companies require that one of the senior members of staff have committed a criminal offence or a regulatory offence, as a result of which duties of the company have been violated. This applies to members of representative bodies, authorized representative partners or shareholder representatives, chief representatives and procura-holders. Which duties of the company are concerned depends on the actual circumstances. Criminal offences on the occasion of a professional activity are unrelated to this.
Amount of regulatory fines
The amount of regulatory fines can be considerable. Section 30 par. 2 no. 1 Act on Regulatory Offences provides a maximum of €10 million in case of an intentional offence and €5 million in case of negligence.
Compliance
What is ‘compliance’?
The duty to follow the law is a matter of course. Nevertheless, monitoring compliance with legal regulations in companies is necessary, especially at strategic points. An example are corruption offences in acquisitions and sales.
Key measures may be:
- Establishing a compliance department
- Ombudsman
- Developing compliance regulations
- Training of staff
- Analysis of high-risk procedures
- Implementing special processes in high-risk areas
We are criminal lawyers
We analyse the charges brought against you and develop solutions for your case. For this purpose, we can draw on decades-long specialized experiences, which allows us to achieve the optimal outcome. Of course we pay particular attention to various possibilities of proceedings being dismissed according to the Code of Criminal Procedure.
