Managing directors and compliance officers (CO) who are actively involved in criminal offences against third parties can be punished as perpetrators or aiders and abettors. But what about if they just "turn a blind eye" when employees or other managing directors commit criminal offences? The Federal Court of Justice [Bundesgerichtshof, BGH] has now clearly limited the criminal liability in such cases (docket no.: VI ZR 341/10, F.A.Z. dated 1 August 2012). In doing so, it has contradicted the judgement of one of its other senates, and has facilitated the daily work of managers.
A person who enables or facilitates a criminal offence by not stopping the offender can be punished for aiding and abetting by omission. However, this only applies to persons obliged to intervene on grounds of their special duty to care ["Garantenpflicht"]. In a high-profile judgement in 2009, the Fifth Criminal Senate of the Federal Court of Justice incidentally determined that a CO has a general duty to care obliging him to prevent criminal offences against third parties by members of the company (docket no. 5 StR 394/08). This is the reverse side of the obligation assumed by the CO vis-à-vis the company to ensure lawful conduct. Although the Federal Court of Justice did not say it at the time: the same must apply to managing directors (and management board members), for compliance is a management duty that is delegated to the CO. The judges unfortunately did not substantiate their opinion in greater detail at that time, for even if managing directors and COs bear an obligation vis-à-vis their own company to diligently execute their duties, it is not evident that they simultaneously also (want to ) bear such an obligation vis-à-vis third parties.
This very distinction has now been made by the Sixth Civil Senate of the Federal Court of Justice in the current judgement. A member of the management board of the now insolvent Nici AG had col-luded with the managing director of a commercial enterprise to embezzle money of Nici AG by means of bogus invoices. A second managing director of the commercial enterprise was not actively involved. The insolvency administrator of Nici AG demanded compensation from him, however, on grounds of aiding and abetting by omission, because he had not hindered the embezzlement. The Federal Court of Justice rejected this. If the managing director has not assumed a personal obligation to protect the third party due to special circumstances, then he is exclusively obliged vis-à-vis his own company. This principle can be transferred to COs to whom compliance obligations have been delegated.
Consequently, the two judgements are contradictory. Divergences between the civil and criminal senates of the Federal Court of Justice are usually clarified by the United Grand Senates. There was no need to call in this body in this case, however, because the statements in the judgement of 2009 were not of relevance to the decision.
For managing directors and compliance officers, the new judgement brings relief. Following the decision in 2009 it was often feared – partially to an excessive degree – that errors in the compliance organisation could swiftly lead to criminal liability and damage claims vis-à-vis third parties. The Sixth Civil Senate has now taken clear action to counter this. It can be hoped that this systematic, clearly more convincing opinion will also prevail with the criminal senates.
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