Specialisations

Moreover, these must follow national and international standard procedural guidelines (DRSC, IAS / IFRS). In the case of discrepancies leading to, for example, the so-called enforcement procedure of the DPR (German Financial Reporting Enforcement Panel), which may also lead to the initiation of criminal investigations, investigations are often carried out by the prosecution not only against the responsible executives in the company, but also against the tax advisors and auditors. Knierim & Kollegen Rechtsanwälte have special expertise in this area of criminal law (inter alia §§ 331 ff. HGB) and can support our clients with all upcoming questions or if necessary during any investigations.

Irregular or manipulated transactions or inaccurate depictions in the balance sheets fall not only under the investigation of the financial supervisory authorities, but also involve the linking in and cooperation of investigative activities by the public prosecutor's office. Where the public prosecutor investigators primarily play a major role are in the areas of fraud and breach of trust offences (ss. 263, 264a, 266 of the Criminal Code), market manipulation (s 20a of the German Securities Trading Act) and insider trading (s. 38 (1) of the German Securities Trading Act). Stock market-listed companies and banks must operate a regulated and proper information policy and communicate all personal and factual company facts at the right time. Otherwise, this may not only have an effect on the share price, but also on the existence of the company. In respect of companies that are also listed in the United States, we together with US law firms attend, support and coordinate in connection to the procedures of the United States Securities and Exchange Commission (SEC) as well as in connection with the Foreign Corrupt Practices Act (FCPA).

In particular, in the construction industry, but also in the health sector, there are often public procurement procedures as the criteria for publicly normed tenders which are deliberately circumvented by competitors. The allegations by cartel authorities or by public prosecutors are aimed not only against individuals responsible for fraud, active corruption or embezzlement acts, but may give even significant risks to corporations.

The particular sensitivity of antitrust law is evidenced by the high corporate fines, which can account for up to 10% of the previous year (consolidated) turnover. In respect of the company concerned there are to be expected other existential negative significant consequences, such as the registration in public procurement and corruption registers and the freezing of assets to be forfeited.

We advise you at every stage of the process, from the examination of the possibility of so-called “leniency program”, the accompaniment during searches, to defending against fines or in criminal proceedings, and thereby ensure the best possible advice and defence.

Regulations governing commercial criminal law are found in the core areas of criminal law (i.e. the Criminal Code) and in supplementary penal provisions as well as in international treaties and regulations, such as criminal corruption or foreign national regulations governing transactions in the capital market. For details, see the respective specialisation.

This is not only a legal necessity but also reflects the company’s understanding of its own integrity. A bilateral positive cooperation, hence a “win-win situation”, can often arise from close cooperation with the public prosecutor or the investigating professional governing bodies. On the one side the company is keen to clarify the case internally and to draw the appropriate inferences from the wrongdoing. This may result in personnel changes or the rethinking of the company's internal control mechanisms. On the other side there is for the investigating authorities a benefit in that they can gain comprehensive insights into business processes and arrive at a rapid clarification of the issues that require investigations.

Corruption can fall into both active and passive cases of corruption in respect to public authorities (ss. 331 ff., Criminal Code, if necessary in conjunction with the Law on Combating Bribery of Foreign Officials in International Business Dealings (IntBestG)) or in connection with business competition (ss. 299 ff. of the Criminal Code). In recent years, legislators throughout the world have significantly expanded the list of criminally actionable acts in the area of ​​corruption law (for example by the UK Bribery Act 2010 or the US Foreign Corrupt Practices Act). The investigating authorities have become simultaneously more sensitive to this. In that, even bribery in international business transactions is now a criminal offence, and furthermore other sensitive areas of business etiquette which may have been solely or initially perceived as no more than a token of mutual esteem, or friendly gesture, are areas of legal risk. In some cases it is difficult to determine for companies whether certain invitations, gifts or other benefits should be regarded more as socially acceptable public relations or could already be construed as intentional benefits offered / bribery. Knierim & Kollegen support clients on preventive measures or as well as with ongoing investigations.

In addition to classic crimes in relation to fraud allegations there needs to be consideration given to the regular food legal sanction norms of the applicable statute (LFGB), thereby requiring knowledge of the relevant European law, in addition to an in-depth expertise on food regulation. For a company defending against such allegations, the consequences are quickly extremely threatening to its existence: Public reporting can lead to irreparable damage to customer and supplier relations, commonly threatens in parallel the withdrawal of regulatory approvals and finally claims for damages or implementation of measures of so-called asset recovery which may exceed quickly the scope of financial sustainability. Our lawyers support in all preventive aspects in relation to these as well as in the context of ongoing governmental investigations or judicial proceedings.

In recent years tax evasion has grabbed the public attention due to numerous investigations of the tax authorities based on the grounds of inaccurate information or concealment of tax-related data in tax declarations. Ever since the tightened case law of the 1st Criminal Chamber of the Federal Court of Justice it has become clear that tax evasion is not a trivial offence and those convicted can face prison sentences without probation. In order to avoid criminal prosecution there has been recently a flood of voluntary declarations (s. 371, Fiscal Code), and as a result the German legislature has significantly restricted the rules and regulations for this purpose; thereby sound advice in this connection in advance is essential.

Our lawyers are ready to advise and defend you in all issues concerning administrative and criminal tax law. We work closely with external tax advisors and accountants, so that we can assist with the frequently changing and complicated regulations.

At your request, we also represent you before the tax authorities or tax courts in the context of criminal proceedings, as is commonplace, so as to avoid through appeal proceedings the enforceability of a tax assessment or to ensure your liquidity through an application for suspension of enforcement order.

Both in the core areas of criminal law and in supplementary regulations there are numerous provisions that criminalise water, soil and air pollution (including §§ 324 StGB et seq.). What is more, criminal proceedings are frequently taken out against plant operators, either against the improper handling of hazardous waste or the operation of plants of this type without the necessary proper authorisation. For infringements of this kind companies risk heavy fines and skimming of profit. The responsible individuals may have to reckon with prison sentences.

In these areas, a special knowledge of the respective field of law and the underlying European legal framework is essential. In addition, EU criminal law plays an increasing role in ›› extradition law and in the area of mutual legal assistance (MLA). In addition, special prosecution and investigation bodies have been established for certain European-specific crimes, such as the European Public Prosecutor's Office or the Anti-Fraud Office OLAF in Brussels. In recent years, however, guidelines have also been adopted to strengthen the rights of the defence. With the adoption of the European Charter of Fundamental Rights and the recognition of the European Convention on Human Rights in the EU Treaty, fundamental rights at EU level and the case law of the European Court of Human Rights in Strasbourg have gained further importance. In our team you will find competent advisors who are familiar with the specifics of EU law and the case law in Luxembourg and Strasbourg. We will help you to comply with the complex requirements of European criminal law and to exercise your right to an effective defence, also across borders, taking into account the specifics of European law.

Hence, international trade law serves to ensure the enforcement of overriding national interests as opposed to the interest of traders. Statutory regulations to allow this can be found in European Union law, on the basis of the exclusive competence of the European Union for the control of external trade in the Act for the Implementation of the Common Market Regulation for the import and export of market regulation goods, in the Act on Monitoring in respect of criminal and other smuggling bans, in the Act implementing the Convention on International Trade in Endangered Species of Wild Fauna and Flora, in the Regulation on Narcotics and Foreign Trade, in the Military Weapons Control Act, in the Implementation Act to the Chemical Convention, in the regulations to the chemical weapons Convention as well as the Foreign Trade and Payments Act, and the Foreign Trade and Payments Ordinance.

It is therefore necessary to operate a proper accounting, to have the overview over solvency and to enter only debts that the company can meet towards its creditors. To meet this purpose, the German Commercial Code (HGB) and the German Insolvency Statute (InsO) and the Limited Liability Companies Act (GmbHG) regulate various obligations of the business owner.

Once a company is in crisis and can no longer meet its debts to its creditors, the company must expect investigations (e.g. delay in filing for insolvency according to s. 15a of the Insolvency Statute or for bankruptcy offences according to ss. 283 et seq. of the German Criminal Code).

Our lawyers will gladly advise and defend you in all matters relating to insolvency or bankruptcy offences. Together with tax advisors and auditors, we closely examine the further business backgrounds and context and review (incriminating) expert opinions of insolvency administrators or business consultants, ensuring an optimal advice to support our clients.

Connections with foreign law also emerge through cross-border activities, e.g. with foreign subsidiaries or supplier relationships abroad. Typical cross-border crimes include international corruption, Internet fraud, tax evasion, customs violations, violations of the Foreign Trade and Payments Act, War Weapons Control Act and many others. In addition to questions of the applicability of German criminal law abroad, special knowledge of mutual legal assistance and extradition law as well as comparative criminal law are also of vital importance here. Finally, German criminal law has established universal jurisdiction for so-called “core crimes,” atrocities such as genocide, crimes against humanities, and war crimes, which can be prosecuted even if no link to Germany is established. We have experts who deal with nationalized international criminal law as well as with cases before international criminal courts and who are both academically and practically active in this field.

The internet has become a constant companion and the use of new electronic media is taken for granted. This innovation has given rise to new forms of crime and caused the legislature to respond with the provision of a variety of new categories to the Criminal Code with supplementary penal provisions. In addition, existing rules had to be specified by way of case law due to the fast pace of development and the specific features of the online world.

Individuals and companies have been increasingly exposed to aspects of copyright and competition law, data espionage (s. 202a of the Criminal Code), the disclosure of secrets (s. 17 of the Act Against Unfair Competition), the protection of individual rights and press law, as well as fraud that is conducted through computer or internet as a medium.

In many such situations also the data protection legislation is becoming increasingly important.

Knierim & Kollegen can assist you in all situations in which you have to defend yourself against such allegations, as well where you actively bring criminal charges or internal investigations against third parties to protect yourself and your company from threats of new media and against risks from electronic communications.

We accept the filing and substantiation of legal appeals, reviews and constitutional complaints - in conjunction with your previous advisor or defender.

In this regard certain commercial (criminal) law conditions should be kept in mind when developing both preventive and defensive strategies to take into account the special concerns of CEOs, boards of directors and supervisory boards.

Cash transactions (including transactions by cash on delivery), doubts about the identity of the business partner or the beneficial owner, and other abnormalities in the relationship require a proper business process for dealing with indications for money laundering (suspicious transactions) to avoid the relatively severe sanctions.

Our firm has a long expertise in assessing and monitoring of suspicious transactions, defending against allegations of money laundering and the implementation of processes preventing money laundering. The implementation of proper corporate prevention procedures is far less expensive than is often assumed and much more cost effective compared to the consequences of not having any.

In addition to extradition and transfers by means of the European Arrest Warrant, this includes, for example, the following

• requests for investigations and the taking of evidence (e.g. cross-border telecommunications surveillance or the interrogation of suspects abroad), within the EU by means of the European Investigation Order,
• seizure and confiscation of assets (i.e. the “freezing” of bank accounts)
• international search requests from Interpol (so-called “red notices”), which sometimes are issued in foreign countries on the mere basis that the concerned person cashed an uncovered cheque, as well as
• requests for the transfer of sentences, for example, where a sentenced person prefers to serve his or her sentence in his home country, which may also be preferable for social reintegration.

The interplay of bilateral, international and supranational legal instruments (framework decisions, directives, regulations) as well as national regulations makes this exotic subject matter a challenge for many legal practitioners, especially since the case law of the European Court of Justice in Luxembourg and the European Court of Human Rights also needs to be taken into account.

Especially in respect of auditors, the professional and criminal sanctions due to various changes of professional legislation have increased (cf. the amendments of certified public auditor regulations –“WPO”) in recent years, but also due at least to the increased public perception concerning financial and other balance-sheet crises which have increasingly grown in importance in the public eye.

Furthermore, we represent in the area of medical criminal law regularly companies in the pharmaceutical and medical industries and individual physicians and pharmacists in relation to allegations of corruption, embezzlement or fraud and irregular billing procedures.