Compliance defense: BGH honors subsequent compliance measures in the assessment of fines
In its ruling of April 22, 2022 (Ref.: 5 StR 278/21), the BGH again addressed the consideration of compliance measures in the imposition of fines pursuant to Section 30 OWiG for the first time after its landmark ruling of May 9, 2017 (Ref.: 1 StR 265/16).
Privileging through the introduction of comprehensive compliance measures and a whistleblower system
In its 2017 ruling, the Federal Supreme Court had already confirmed that when imposing a fine on a management person, the establishment of an effective compliance system designed to prevent legal violations can lead to a reduction of the fine. In particular, it may also play a role in this context whether the management person (only) optimized corresponding regulations as a result of the criminal proceedings initiated and designed its internal processes in such a way that comparable infringements of the law would at least be made significantly more difficult in the future.
The BGH now took up this very open formulation and for the first time named individual circumstances that are to be taken into account as mitigating factors when calculating the penalty portion of a fine. Specifically, the BGH stated that a subsequent ‘self-cleaning process’ – in this case the introduction of comprehensive compliance measures and a whistleblower system – can be rewarded.
Compliance Defense – Quo vadis?
The repeated confirmation of the positive consideration of compliance measures taken after the discovery of the offense in the assessment of the penalty is to be welcomed. Unfortunately, a certain degree of legal uncertainty remains with regard to the question of which preventive measures – including those that are completely independent of the offense – can lead to a reduction in the fine in individual cases.
During the last legislative period, the legislature made an attempt to anchor the mitigating effect of (preventive) compliance measures in the draft Association Sanctions Act (VerSanG-E) (see our blog post). The new government still has the bill on its agenda, but has put it on hold due to the current political situation. Meanwhile, word from coalition circles is that the reformation process will resume in the new year. At a recent meeting, Justice Minister Bushman announced that there would be no new law on sanctions for associations. Instead, however, there are plans to adapt and expand the existing OWiG system, particularly with regard to legal consequences.
As usual, we will follow further developments and report regularly on our blog.
The fact that the obligation to establish a compliance management system arises from the general duty of legality for the company management was already confirmed by the Higher Regional Court of Nuremberg in March of this year (ruling dated March 30, 2022, ref.: 12 U 1520/19 – see our blog post on this subject). Not only against the backdrop of an increasingly likely penalty-mitigating effect of compliance measures, but also in particular with a view to possible obligations to pay damages to corporate bodies, managers should ensure the establishment of an effective compliance management system, monitor and test its appropriateness and functionality in practice, and ensure appropriate adjustments if necessary.
We regularly support companies in their considerations, the examination as well as the further development of compliance measures in order to implement effective and at the same time “defense-proof” compliance management systems. Please feel free to contact us at any time.