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3. Criminal liability of corporations (Unternehmensstrafrecht)
Can private corporations be held criminally liable for offences
committed by (i) management and (ii) employees?
Yes. Private corporations can be held liable for offences that cover
bribery related criminal offences. The basic rule regarding liability
of legal entities for criminal offences, is the ancillary liability of legal
entities (a legal entity is liable in addition to the perpetrator). In determining
the liability of a legal entity for a criminal offence in a specific
case one has to establish if the offence was committed on behalf of
a legal entity or for the benefit of a legal entity or for the legal entity’s
account.
Is the criminal liability of the corporation fault-based or a strict
liability offence?
Strict liability.
Is a levy of enrichment (disgorgement) of the corporation’s
profits of the offence possible (e.g., the profit obtained from a
contract, which was won through bribery)? (Verfall)
Yes.
Can a compliance programme (i) reduce the fine or (ii) permit the
corporation to avoid prosecution/conviction or lead to impunity?
A compliance programme could potentially be regarded as a mitigating
circumstance.
What is the maximum fine which can be imposed on a corporation
for a bribery offence?
EUR 1 million, but half or all of the legal entity’s property may be confiscated
as a punishment as well.
4. Miscellaneous
Is management obliged to report offences committed within
the corporation to the authorities?
No.
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