The next step towards "Corporate Criminal Law"
As many are aware, the draft of the so-called Association Sanctions Act ("VerSanG"), which is sometimes called the "small business criminal law", has been circulating since 15 August 2019. In terms of content, it concerns the possibility of sanctioning companies and other associations if criminal offences are committed from their sphere. There were positive voices on this draft, but also quite a few critical ones.
Even though there was more or less general agreement that it was positive that internal compliance work and cooperation in dealing with potential breaches of duty, in particular the conduct of internal investigations, could now be rewarded in favour of the company with a view to possible sanctions, this did not go far enough for many.
The current (probably final) draft of the VerSanG is now available as of 20 April 2020, which has taken up the points of criticism in various places. The following points are particularly relevant:
- If an internal investigation is carried out in cooperation with the investigating authorities and this contributes to the clarification, then this "shall" be taken into account in mitigation of the penalty when assessing the sanction. Previously, the norm was designed as a so-called "may" provision.
- The requirement that the internal company investigation must have been carried out "in accordance with applicable law" has been deleted without replacement (formerly § 18 (1) no. 6 VerSanG).
The background to this amendment is probably that not every infringement of the law, no matter how small, should lead to the elimination of the privilege to mitigate punishment when conducting the internal investigation. After all, it is precisely this privilege to mitigate punishment that is intended to provide a concrete incentive for the company to clarify and come to terms with the matter. Nevertheless, it will also be important in the future to ensure that violations of data protection law, in particular, can lead to independent, sometimes serious proceedings against a company.
The new section § 17 (3) of the VerSanG clarifies which specific circumstances are to be taken into account when deciding on the mitigation of sanctions:
When deciding pursuant to subsection 1, the court shall in particular take into account the nature and extent of the facts disclosed and their significance for the clarification of the offence, the time of the disclosure and the extent of the association's support of the prosecution authorities. Mitigation pursuant to subsection 1 is excluded if the association discloses the results of the association's internal investigation only after the opening of the main proceedings (section 203 of the Code of Criminal Procedure)"
- The possibility of sanctions in the form of dissolution of the company or the association in the case of particularly serious offences, which was still provided for in the previous draft, has been deleted without replacement. This is also to be welcomed. The sanction cannot be liquidation.
- It is also interesting to note that, in contrast to the previous draft, the Federal Republic of Germany, the Länder and foreign states are no longer excluded from the possibility of sanctioning under the VerSanG, i.e. proceedings could also be brought against them under the Associations Sanctions Act.
- The change in terminology is rather cosmetic in that in the future the offence committed by an association will (only) be called an offence committed by an association. Perhaps this is to take strictly dogmatic voices into account.
- Finally, it is clarified that the addressee of the law is not every association - as was the case in the previous draft - but (only) those associations whose purpose is directed towards an economic business operation.