Criminal law advice is best sought before investigators are at the door. An unexplained commission payment, a tip-off about manipulated invoices or a worsening liquidity crisis may already call for decisions with far-reaching consequences for the company and those responsible. An independent perspective helps to identify risks in good time and to remain able to act.
We support companies in preventing and investigating criminal offenses and represent them in criminal and administrative fine proceedings. This requires clarity about who has to act and what information is needed. The processes must also allow lawful conduct to be documented in a traceable way.
Companies can be victims and can themselves be affected
Theft, fraud or breach of trust (Untreue) can cause direct harm to the company. At the same time, corruption and tax evasion can be committed from within the company. A supposed benefit to the business does not protect the individuals involved from criminal liability.
Companies may in particular face corporate fines under § 30 OWiG and the recovery of economic benefits. For intentional criminal offenses by a person in a management position, the statutory fine is generally up to EUR 10 million. For negligent criminal offenses, it is generally up to EUR 5 million. Further-reaching rules apply to the recovery of benefits and under special statutes. Breaches of supervisory duties within a business are covered by § 130 OWiG. What supervision is required depends on the specific business and its risks. The law does not prescribe one identical compliance system for every company.
Prevention that works in everyday business
An effective compliance system must fit the size, sector and business model of the company. This includes clear responsibilities, appropriate controls, comprehensible rules and training. A set of rules that nobody knows or follows does not create a reliable organization.
Particular attention should be paid, for example, to gifts and invitations, intermediary commissions, tenders, accounting, social security contributions and trade secrets. The assessment under criminal law often requires knowledge of company, employment, tax or data protection law. We therefore coordinate our advice with the specialists involved in each case.
Handling reports confidentially
Under the Whistleblower Protection Act (HinSchG), many employers must set up internal reporting offices. The general threshold is usually at least 50 employees, with special rules applying to certain sectors. An external lawyer can also be entrusted with the tasks of a reporting office. Responsibility, confidentiality, deadlines and feedback must be organized in compliance with the law.
A report is, first of all, a reason to investigate. A whistleblower who meets the statutory protection requirements must not suffer retaliation (§ 33 and § 36 HinSchG), nor may an accused person be treated as guilty before the facts have been established. A sound procedure protects both sides and enables an objective investigation.
Our compliance ombudsperson service for organizations explains how an external lawyer can support an internal reporting office under German law.
Internal investigations with clear limits
Before employees are interviewed, e-mails are reviewed or electronic data is secured, the purpose, legal basis and scope must be defined. Data protection, personality rights and, where applicable, co-determination rights are of particular importance. For the processing of employee data to detect offenses committed in the employment relationship, § 26 (1), second sentence, BDSG requires, among other things, documented factual indications, necessity and proportionality. These requirements must be assessed in accordance with the EU General Data Protection Regulation (GDPR), including its rules on the legal basis and purpose limitation.
An investigation led by lawyers is not automatically protected from access by the state. Whether documents may be seized depends on the lawyer-client relationship, the procedural status of those involved and the statutory protective provisions. The Federal Constitutional Court made this clear in its decisions of 27 June 2018 (2 BvR 1405/17 and others). Absolute confidentiality should therefore not be promised.
Criminal complaint, witness counsel and defense
Whether and when a criminal complaint (Strafanzeige) makes sense or a statutory notification is required must be examined separately. Once a complaint has been filed, the prosecuting authorities decide on their investigations. The company can accompany their course but cannot fully control it.
Employees may need their own witness counsel when being questioned. Management, employees and the company may have different interests. The company’s lawyer does not automatically represent all those involved personally. The professional prohibition on representing conflicting interests under § 43a BRAO and the rules of criminal procedure on representation apply. Where a fine against the company is at stake, the company participates in the criminal proceedings with rights modelled on those of the defense (§ 444 StPO). A joint strategy is only possible within the limits set by professional law and the law of criminal procedure.
In an emergency, we coordinate communication with the investigating authorities, review search and seizure measures and develop a defense strategy. In doing so, we keep personal liability, professional consequences, insurance cover and the continued existence of the company in view.
Related topics
External compliance support with clearly assigned responsibility
Growing companies often lack a dedicated compliance department. External legal support can help identify risks, assign responsibilities, and prepare procedures for responding to concerns. The scope of the engagement is essential: legal assessment, process design, ongoing advice, and an independent monitoring role are different tasks.
A workable engagement defines access to information, contacts, reporting lines, and the response to identified risks. It should also provide a route for concerns involving senior management. External advice can support internal accountability; it does not replace decisions by the responsible corporate bodies or statutory organizational and supervisory duties.
The role of an ombudsperson or internal reporting office is distinct. It concerns receiving and handling reports confidentially within the agreed and statutory framework. A subsequent internal investigation or corporate or individual defense engagement requires separate review. Scope, confidentiality, and possible conflicts must be addressed before roles change.