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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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