Answer ... The obligation for companies to implement an anti-corruption compliance programme is not explicitly governed by German law. In particular, there are no corruption-specific regulatory provisions.
Pursuant to Section 25a of the Banking Act, a direct obligation to introduce a compliance programme exists only for credit institutions and financial services institutions. For other companies, Section 130 of the Act on Administrative Offences merely obliges them to take appropriate and reasonable precautions to avoid legal infringements within the company. The measures to be taken in individual cases depend on the size of the company and the respective risks. In the opinion of the Federal Court of Justice, the entrepreneurial organisational obligation to set up a compliance programme may be stronger in the case of a corresponding hazardous situation; although it is unclear under which circumstances such a hazardous situation is to be presumed.
Answer ... There is no universal recipe for successfully preventing corruption. The necessary compliance measures are always company-specific. Key factors include the size of the company, the industry in which it operates, suspected cases from the past and its national or international orientation.
However, there is a basic set of prevention measures that all companies should normally implement.
First, a risk analysis should be carried out to identify particularly risky business areas. Based on this risk analysis, appropriate measures should be implemented in the company’s organisation, such as the double-checking principle. Particular attention should also be paid to ensuring that the corporate culture rejects corruption. A company should take a clear stand against corruption through measures such as employee training, anti-corruption guidelines and the introduction of an internal sanctioning system. To ensure the effectiveness of anti-corruption measures, regular checks and spot checks should be carried out.
Companies are also advised to properly document the compliance measures they have taken. If corruption does occur despite the existence of a compliance programme, the documentation may be sufficient to exonerate the company.
Answer ... Companies have no documentation or reporting obligations with respect to corruption.
There is an exception for corporations, however. Pursuant to Section 289c of the Commercial Code, corporations are obliged to submit an annual non-financial declaration, in which they must also report on anti-corruption measures.
Nevertheless, for the reasons listed under question 4.2, companies are recommended to keep proper documentation with respect to the fight against corruption.
Answer ... There is no statutory reporting obligation to the authorities in the event that internal company irregularities pointing to corruption become apparent. Irrespective of any non-existent disclosure obligation, the company must put an end to the misconduct and initiate the necessary actions under employment law against the employee concerned.
However, companies are obliged to correct wrongful tax declarations from the past (Section 153 of the Tax Act). Wrongful tax declarations may occur in connection with corruption.
Answer ... Inadequate anti-corruption compliance programmes are sanctioned on a case-by-case basis. The company is liable for omitted compliance measures under Section 30 of the Act on Administrative Offences only if acts of corruption occur as a result of a breach of the supervisory duty by a manager.