Munich, 05. October 2019 | Corporate Criminal Law subjects companies to sanctions when their leaders commit a crime or are responsible for crimes committed by employees. The USA is the trendsetter for Corporate Criminal Liability (CCL) and has expanded its policies into the EU through several big cases. In the EU a number of countries have CCL Laws: i.a. UK, France, Italy, Spain, Netherlands, Denmark, Austria. In Germany and Poland draft acts for CCL are under discussion
In principle CCL is not designed as criminal law because only an individual has a will and con-sciousness to decide how to behave. CCL is mostly based on the principles of law & order and the proceeding rules of public administration law. Some countries follow the principle of le-gality (state must prosecute), but more prefer the principle of opportunity (state may prose-cute).
In general the company is liable for a crime, when a leader has committed the crime. But in some jurisdictions the company is also liable when an employee has committed the crime and the management had no structure to avoid such behaviour (compliance). The type of crime ranges from a limited catalogue to any type of crimes
The main sanction is a fine (payment) against the company
- Proceeds from the crime can be confiscated
- Public announcement and registration of the offense
- Black listing for public tenders
- The company can be dissolved and liquidated
- The offending leader can by sentenced for a fine or jail (if the leader is also the owner / in family businesses / he might be double fined)
- Another risk is the civil damage compensation where claims can be raised against the company
The laws in the different jurisdictions provide various scales for the amount of the fine as type of committed crime, daily rates, size of business / percentage of sales (up to 10%) and a reduction due to compliance structure or internal investigation efforts of the company. If the responsibility of the company is low due to compliance and cooperative investigation of the case the prosecution may be terminated against certain charges or with a reduced fine or even without any charges or fine.
As an outlook: The USA furtheron seem to dominate the policies in international related mat-ters with CCL aspects and the EU Member states are likely to drive politics into company sanction systems. Future will show whether the EU requires harmonisation on the European level.
Companies have to defend against CCL by establishing efficient systems for compliance and legal controlling