German authorities already have certain powers to sanction companies, although no explicit law on corporate criminality exists. Most of the existing provisions are found in the German Act on Regulatory Offences (Ordnungswidrigkeitengesetz, OWiG). In the case of certain violations fines can be imposed on companies and profits gained from offences confiscated.
Pursuant to Section 30 para. 1 OWiG, regulatory fines may be imposed on a corporate entity where someone representing the entity has committed a criminal or regulatory offence in violation of duties imposed on the company by law, or where the company has been enriched or was intended to be enriched. The fines imposed can be up to €10 million for intentional criminal offences and up to €5 million for negligent criminal offences. In the case of regulatory offences the possible fines depend on the offence in question.
Pursuant to Section 130 para. 1 OWiG, further fines might be imposed on an owner of a company as a result of breaches (including by omission) of supervisory measures required to prevent contravention of duties incumbent on the owner. Such measures include the appointment, careful selection and surveillance of supervisory personnel. Regulatory offences may carry fines as high as €1 million, where the breach of duty carries a criminal penalty. Where the breach of duty carries a regulatory fine, the fine depends on the maximum regulatory fine imposable for the breach of duty.
Where the economic advantage gained through the offence is higher than €10 million, the ostensible ‘fine limit’ may even be exceeded and any profits exceeding the regulatory fine may be confiscated.
While it is clear that the authorities already have the powers to impose considerable fines, under the Act on Regulatory Offences, fines are subject to the authorities’ discretion (known as Opportunitätsprinzip). In contrast, if corporate offences were to be qualified as crimes, prosecution would be mandatory (known as Legalitätsprinzip). Statistics indicate that the present system of penalties apparently lacks efficiency: although a high number of corporate crimes come to the attention of the authorities every year (e.g. 71,000 cases in 2013 and 63,000 cases in 2014), public prosecutors very rarely make use of the powers to impose regulatory fines on corporations. One reason for this situation is that according to the provisions of the Act on Regulatory Offences it is necessary to prove the individual guilt of a member or the owner of the affected corporation.
To overcome this problem, the provisions of the proposed draft corporate criminal code do not require individual guilt to be proved. The draft code addresses the corporate itself and the imposition of a fine does not depend on an individual being accused. For example, the corporate would be liable in cases of corporate-related offences committed by personnel engaged in positions with substantial responsibility, or in cases where responsibilities within the corporate are unevenly distributed. Further sanctions can follow from the violation of supervisory duties by decision-makers of the corporation.