CORPORATE LIABILITY UNDER GERMAN LAW FROM A

TRANSPARENCY INTERNATIONAL-PERSPECTIVE

Berlin – ABA 2015 Europe Forum

Mechtild Lauth

Relevant international conventions

TI-S is actively monitoring relevant international conventions, in particular the OECD Convention on Foreign Bribery and the United Convention against Corruption (UNCAC)

Both conventions call on the signatory parties to enact relevant legislation on corporate liabilityArticle 2 OECD Convention: “Responsibility of Legal Persons. Each Party shall take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official.”Article 26 UNCAC: “Liability of legal persons. 1. Each State Party shall adopt such measures as may be necessary,consistent with its legal principles, to establish the liability of legal persons for participation in the offences established in accordance with this Convention.2. Subject to the legal principles of the State Party, the liability of legalpersons may be criminal, civil or administrative.…”

TI monitoring activities

• TI‘s monitoring of the OECD Convention; methodology applied

• The UNCAC Review mechanism and TI‘s involvement

• Lack of enforcement in relation to both conventions

• Specifically in relation to the OECD Convention, the lack of appropriate legislation regarding corporate liability has been highlighted as a particular concern

• recent trends and improvements

Corporate liability in Germany – current legislation

• Currently applicable German law

• Individual criminal responsibility under the Criminal Code • Sanctions under the Act of Regulatory Offences, recent

amendments to the Act

• examples

• Lobbying efforts to move to criminal corporate liability

Proposal for law regulating criminal corporate liability in Germany

• Increased pressure to recognize criminal corporate liability in the context of serious human rights violations

• Lobbying efforts to move to criminal corporate liability

• New draft law on criminal corporate liability introduced by one of the German Länder

• The debate – pro and cons• Assessment

• Expectations in relation to convictions; reference to similar legislation in Austria and its application as a comparative case