Compliance / Internal Investigations
(Corporate) compliance means strictly conforming to the applicable laws and regulations in organisational processes. Companies’ and managers’ fundamental duty to make arrangements to prevent crimes being committed “from inside the organisation” has long been an established practice. However, the requirements are becoming ever more complex. And they increase by leaps and bounds when criminal offenses suggesting deficiencies in the in-house compliance systems are exposed in a company’s own (or a competitor’s) organisation. Internal investigations are indispensable in many of these situations.
We have longstanding experience in both preventive counselling of companies to avoid risks under criminal law (corporate compliance) and internal reviews and investigations of compliance cases. We help our clients improve their internal compliance structures, especially with our expertise and advice in the following areas:
Internal Investigations
Companies face the need to conduct internal investigations for both already ongoing criminal proceedings and the preparation for trials. Structured and documented investigations of the internal workings of an organisation are an indispensable prerequisite for taking the right measures.
We have extensive experience in the execution and management of complex, frequently also transnational, internal investigations of the suspicion of white-collar crimes under German and foreign/international law. In ongoing criminal investigations, we take steps early on to ensure that the internal investigation has the best possible effect on the outcome of the proceedings. Depending on the scope, we either conduct internal investigations ourselves, advise and support the company’s own units in the execution of the investigation, or resort to our extensive network of cooperation partners from renowned law firms.
Corporate executives must exert due diligence in their decisions. Their decision-making process may include obtaining advance legal advice (on criminal law), especially when they face a crisis situation or are about to take on substantial financial or reputational risks.
We regularly advise management and supervisory boards in high-risk decisions and prepare expert opinions on criminal law to already protect corporate bodies ahead of critical decisions. For example, the risk of breach-of-trust accusations can usually be addressed by an expert opinion that examines whether the prerequisites of the business judgement rule (as a “safe haven” for decision-makers) are fulfilled from a criminal law perspective. Alongside in-depth substantiation based on our academic experience, we also contribute our broad practical experience in handling crisis situations.
Expert Opinions on Criminal Law
The management of company-wide precautions aimed at complying with the laws and internal regulations (compliance management) is an overarching task that may affect internal processes in all units of an organisation. When companies reach a certain size, they must install a customised system with certain “components”. Such a compliance management system (CMS) captures both the company-specific risks and the concrete measures taken and aligns, evaluates, and refines them.
We provide advice on both the overall system and its individual components (e.g. set-up or improvement of group-wide corruption and/or money-laundering compliance). In addition to our knowledge of the facts and risk areas that are truly critical in criminal law practice, we also draw on the wealth of experience we have gained in numerous compliance risk analyses and system evaluations for financial institutions and corporate groups.
Compliance Management and Compliance Risk Analyses
Companies can effectively address criminal law risks if they receive information on compliance violations early on and are able to take quick action. For this, they need to set up whistleblowing systems that inspire potential whistleblowers’ trust in their effectiveness and reliability. One key criterion is the protection of whistleblowers that has now been legally enshrined throughout Europe and requires companies, among other things, to establish easily accessible whistleblowing channels that guarantee whistleblowers’ anonymity and protect them against retaliation.
We provide advice for both the establishment of internal whistleblowing systems and the handling of individual reports and critical issues in follow-up measures: how can follow-up measures such as internal investigations or the involvement of criminal prosecution authorities be addressed in alignment with the requirements of whistleblower protection?
Whistleblower Protection and Internal Whistleblowing Systems
Purchasing is another area where criminal law risks are continuously increasing, especially for multinational corporations and their suppliers. In addition to corruption risks, embezzlement risks, and sanction risks, there are also increasing risks arising from the violation of due-diligence obligations with respect to human rights.
In complex global supply chains, in particular, human rights violations (such as exploitation, displacement, or child labour) in any link of the value chain may also have far-reaching consequences for German companies. With our distinct expertise in international criminal law and human rights protection under criminal law, we also provide preventive advice in this area.