“Verbandssanktionengesetz” — Corporate Liability for Germany?

Abstract

AbstractCriminal offenses committed by legal persons or associations of individuals can only be punished in Germany with a regulatory fine under the German Act on Regulatory Offenses (Gesetz über Ordnungswidrigkeiten; OWiG). As the current governing parties (2017–2021)—the CDU, the CSU and the SPD—did not deem this to be an appropriate response to corporate misconduct, the Act to Strengthen the Integrity in the Economy (Gesetz zur Stärkung der Integrität in der Wirtschaft) was set to introduce the Corporate Sanctions Act (Verbandssanktionengesetz; VerSanG), which would have provided a new framework for the punishment of unlawful corporate actions. This legislative project, however, collapsed in the summer of 2021 following years of work. After a brief introduction to the development of corporate criminal liability in Germany, this article outlines the current legal situation under the OWiG before presenting the development and the main contents of the Government Draft of the VerSanG. Subsequently, a more in-depth review of specific—particularly controversial—regulations is provided, which addresses and analyzes the criticism that has been voiced with regard to these provisions. Lastly, the failure of the draft bill, the prospective developments, and the continuing relevance of the Government Draft are considered.