In German law, an administrative offense is an offense that does not reach the punishable unlawful content of a criminal offense, 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 offenses law is to be assigned to administrative law (administrative sanctions), however, many areas of supplementary penal provisions are also equipped with regulations on administrative offenses (e.g. traffic law, law on narcotics, food law, registration law, etc.).
1. Content and Procedure
Administrative offense 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 offense and an administrative offense, 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 offense 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 offenses. 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 offenses 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 offense and up to five million euros in the event of a negligent offense.
In the fine proceedings, the financial advantages that the company has gained from the offense 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 offense, 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
No separate Corporate Sanctions Act has entered into force. Corporate fines continue to be governed in particular by § 30 OWiG; breaches of supervisory duties may be relevant under § 130 OWiG. The following passage records the earlier reform debate: the CDU/CSU–SPD coalition agreement of 2018 contained this statement of intent on page 126:
“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.”
The 2020 government bill (BT-Drs. 19/23568) was not passed before the end of the 19th legislative period and lapsed. The May 2023 Conference of Justice Ministers confirmed this and called for a new bill. A political call for reform must therefore be distinguished from law in force. Whether and in what form a further reform will be enacted remains open.