Impact of FCPA (US Anti-Corruption Act) and UK Bribery Act on German Management
Not least since the cases of “Siemens”, “Daimler”, “BAE”, “MAN”, the Foreign Corrupt Practices Act (FCPA), which applies in the USA and dates back to the 1970s, has become the focus of German public attention. The FCPA is divided into two sections. While on the one hand acts of bribery are subject to sanctions under certain conditions, a second, in practice more frequent area regulates the violation of mandatory accounting rules and the requirement of adequate internal controls. Even acts committed by employees of a company that is not itself listed on a U.S. stock exchange may fall within the scope of the FCPA if certain — from a German perspective — minor connecting factors to the U.S. are present. Examples of these connecting facts are: Use of U.S. accounts for the transaction in question, a meeting on U.S. territory during which bribes were allegedly negotiated, participation in a telephone call from abroad (!).
The UK Bribery Act, on the other hand, has been in force since mid-2011. It borrows significantly from the FCPA. However, its anti-corruption regulations go beyond existing U.S. regulations. Here, too, the connecting factors for intervention are very small. It applies worldwide to all companies that have business relations with UK companies or are active on the market in the UK, i.e. have a “sufficiently close connection” to the UK. German companies must have a demonstrable business activity in the UK. The UK Bribery Act thus applies to secondary branches, representative offices and production facilities in the UK.
The legal consequences of the FCPA are remarkable and can threaten the existence of a company and a manager. The company involved may be fined up to $2 million per case. In addition, fines or imprisonment (the latter up to 5 years) are imposed on the managers involved, at whose behest the payment was ordered or executed. In addition, there are civil penalties. The best-known example from a German perspective is Siemens AG: here, a fine of US $450 million was imposed, and the profit skimming amounted to a further US $350 million. And the proceedings against some managers have not yet been concluded.
British courts can impose fines of unlimited amounts(!) on companies and individuals. Private individuals also face up to ten years in prison and companies face exclusion from all public contracts
General advice is no substitute for individual, preventive advice and examination of the specific risk situation.
But: Transparent and implementable guidelines for the prevention of corruption should be in place in the company in any case. Top management should commit to taking action against corruption and establish a corresponding corporate culture that rejects corruption.
Business partners must be selected carefully and in accordance with compliance requirements. Employees are to be trained on a regular basis.
In addition, there is the need to take out appropriate D&O insurance*) for the managers, which also includes adequate criminal law protection.
*) D & O insurance (Directors and Officers insurance) protects members of governing bodies such as GmbH managing directors, AG, foundation and association board members, supervisory board members and advisory board members as well as executive employees and authorized signatories from the financial consequences of personal liability vis-à-vis their own company (internal liability) and vis-à-vis claims by third parties (external liability).