Administrative offences
In German law, an administrative offence is an offence that does not reach the punishable unlawful content of a criminal offence, but nevertheless appears to be worthy of punishment. It is not imposed with a criminal sanction, but as a legal consequence results in a fine (§ 1 Abs. 1 OWiG). The majority of administrative offences law is to be assigned to administrative law (administrative sanctions), however, many areas of supplementary penal provisions are also equipped with regulations on administrative offences (e.g. traffic law, law on narcotics, food law, registration law, etc.).
1. Content and Procedure
Administrative offence law is modelled on substantive criminal law except for a few dogmatic subtleties (e.g. conceptual summary of perpetration and participation, “Einheitstäterschaft”, § 14 OWiG). However, the OWiG also contains procedural provisions, the StPO as procedural rules only applies as a supplement (§ 46 OWiG). Therefore, searches or seizures are also possible in the fine proceedings. If an act constitutes both a criminal offence and an administrative offence, the penal law takes precedence (§ 21 OWiG) and the public prosecutor’s office is responsible (§ 40 OWiG).
The legal consequences and the actors involved are different. The fine of the administrative offence law (§§ 65 ff. OWiG) as administrative sanction does not represent a real criminal penalty, since this is reserved to the judiciary. The fine is usually imposed by the public authorities (§ 35 OWiG). In contrast to criminal law, in which the prosecution of crimes on the basis of the mandatory prosecution system is one of the duties of the public prosecutor’s office, the discretionary prosecution system applies to administrative offences. As a result, prosecution is at the discretion of the administrative authority.
The OWiG itself often contains relevant facts such as Stating False Names (§ 111 OWiG: Particular significance also for the statement in the preliminary proceedings), Inadmissible Noise (§ 117 OWiG, fine up to 5000 €), Public Nuisance (§ 118 OWiG; not to be confused with “Causing a public disturbance”, which entails punishability according to § 183a StGB), Keeping Dangerous Animals (§ 121 OWiG) and Total intoxication (§ 122 OWiG).
Many catalogues of fines explicitly distinguish between first-time offenders and repeat offenders in order to impose stricter sanctions in cases of recidivism.
The fine is generally between five euros and, unless the law provides otherwise, one thousand euros (§ 17 Abs. 1 OWiG).
2. Special features for companies
However, administrative offences law can also result in very severe sanctions. This becomes particularly clear in the so-called “Corporate Criminal Law” (§§ 9, 30, 130 OWiG). The fine under § 30 Abs. 2 OWiG amounts to up to ten million euros in the event of an intentional criminal offence and up to five million euros in the event of a negligent offence.
In the fine proceedings, the financial advantages that the company has gained from the offence can also be skimmed off.
- 30 OWiG represents the final regulation on the absorption of profits. The law of asset recovery follows an iron rule: A criminal (here: the legal person / the association) should not be allowed to draw economic advantages from the crime (“crime must not pay”). The absorption of profits is a form of governmental intervention by expropriation. The confiscation or absorption of the proceeds of the crime can in individual cases be even harsher than the actual fine:
In 2007, for example, the Siemens group of companies received a fine of €201 million for misconduct in its telecommunications division Com. This “only” concerned an administrative offence, namely a violation of monitoring obligations. The sanction at the time was one million euros; the other 200 million were used to levy the unlawful profit. In another fine case against Siemens, the Munich public prosecutor’s office was able to impose a fine of as much as €395 million.
The skimming is therefore a sharp sword: companies must be prepared for sloppiness in setting up a functioning compliance system to be punished not only with fines of up to € 10 million in the meantime, but also for the financial benefits they have gained by not exercising the necessary duties of care.
3. Remedies
An appeal against the fine is admissible (§ 67 Abs. 1 OWiG). The administrative authority can then either withdraw the fine or forward the case to the public prosecutor’s office, which submits it to the local court for a decision (§§ 70 ff. OWiG).
4. Outlook: Corporate Criminal Law
In the near future, major reforms in the law on asset sanctions are imminent. The less powerful instruments of the OWiG are hardly suitable for the difficult and complex subject of white-collar crime. The new coalition agreement between the CDU/CSU and SPD therefore contains suggestions for a new regulation of the company penalty and for internal investigations. There (p. 126) it says, among other things:
“We want to ensure that white-collar crime is effectively prosecuted and adequately punished. That is why we are redefining the sanctions law for companies. […] We will extend the range of sanctions: the current maximum fine of up to EUR 10 million is too high for smaller companies and too low for large corporations. We will ensure that the level of the monetary sanction in future depends on the economic strength of the company. […] Furthermore, we create concrete and comprehensible rules for the allocation of company money sanctions. […] We will provide legal incentives to provide information through internal investigations and subsequent disclosure of the findings.”
It remains to be seen whether or in what form a genuine corporate criminal law, as it already exists in other countries, will be implemented with this declaration of intent.
