Violation of the duty of supervision (OWiG)

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In the German legal system, a violation of the duty of supervision in companies and companies can be punished as a fine according to Section 130 of the Administrative Offenses Act (OWiG).

Anyone who, as the owner of a business or company, does not take the necessary supervisory measures to prevent the breach of business-related obligations of the owner or does not take sufficient action, is acting improperly if sufficient supervision would have prevented the breaches or made them significantly more difficult. If supervision is delegated to other employees, their careful selection and monitoring is the duty of the company owner. This also applies to public companies . Where the holder is a legal person or an unincorporated association, the ahndungsbegründende personal perpetrators term "owner", in accordance with § 9 OWiG z. B. the authorized representative or the partner authorized to represent, who thereby becomes a capable perpetrator himself, although he is not the owner of the business or company.

To put it simply, a fine can be imposed on the owner or manager of a company or company if he has not complied with his supervisory obligation. In addition, however, a person working for the company (e.g. employees, temporary workers, contractors) has unlawfully committed an administrative offense or a criminal offense (objective Similarity condition).

Legal development

The regulation goes back to § 188 of the Prussian trade regulations of 1845, which was adopted in § 151 of the trade regulations of the North German Confederation and the Reich. It was modified in 1968 in the Law on Administrative Offenses (OWiG) .

Sense of the rule

The purpose of the provision is to punish violations that have been committed by employees in the context of their duties in such a way that it affects the beneficiary of these violations. It is mentioned again and again in the discussion about compliance . In large organizations it is usually no longer possible to trace who exactly committed the offense. Also, the damage done is often extremely high compared to the perpetrator's economic performance. Here the legislature has created the possibility of penalizing the economically efficient beneficiary of the administrative offenses and skimming off what has been obtained by means of a fine. In this way, case constellations are prevented that would otherwise make a meaningful penalty impossible. This would be the case, for example, if a company owner instructs a customs officer to provide incorrect information through which the company evades customs at an enormous amount: The monthly income of the customs officer would be so low that a fine based on the amount of the damage would never be paid by him would be able to be paid and thus would represent undue hardship .

From this it follows that Section 130 OWiG represents a so-called catch-all offense that only applies if the business owner cannot already be prosecuted as a participant in the reference act (unlawful or criminal offense against company-related obligations).

Fine frame

The administrative fines resulting from § 130 para. 3 OWiG and amounts to crimes up to 1 million euros , otherwise the fine frame through the fine frame of the committed offense limited. If both regulatory offenses and criminal offenses are made possible by the breach of duty of supervision, the range of fines is determined by the offense, unless the range of fines for the offense is higher than € 1 million. In the case of negligent breach of duty of supervision, the range of fines is halved according to Section 17 (2) OWiG.

Field of law

The breach of duty of supervision is always an administrative offense, even if the underlying act was a criminal offense.

The duty of the business owner to take the necessary supervisory measures to prevent violations in the business is not regulated separately by law . It results from the guarantor-like position of the business owner, who is responsible for the processes in his business. Although many criminal and administrative fines norms are only aimed at the owner of a company as the addressee of the norm , this is usually in fact not able to meet all of these requirements personally. He transfers this to employees. From this constellation the guarantor position of the business owner results. He transfers his obligations to third parties and must therefore direct and control their actions in such a way that compliance with his obligations is guaranteed.

The § 130 OWiG is thus a preventive standard that seeks to prevent the commission of offenses under business-related duties and together with the §§ 9 and 30 allows OWiG effectively combat illegal activities into economic enterprises.

The legal interests protected by Section 130 OWiG are legal interests protected by all company-related provisions of criminal law and fines law. The protection is shifted forward in such a way that concrete risks of non-compliance can already be averted or eliminated through supervisory measures.

Constituent elements

  1. In the company or company, an infringement of obligations is committed which affect the owner and the violation of which is threatened with a penalty or fine,
  2. the owner has intentionally or negligently violated his duty of supervision and
  3. the infringement would have been prevented or made much more difficult with proper supervision.

The place where the act was committed is irrelevant. The only decisive question is whether the infringement was committed while exercising an activity for the company. In the case of offenses committed outside the company premises, a precise check is required to determine whether the company owner was even able to supervise in this situation.

Perpetrators

The wording of Section 130 is restricted to the business owner, but all of his representatives can also be prosecuted via Section 9 of the OWiG. The person of the business owner is not defined by § 130 OWiG, but assumed to be known. It is therefore ensured that the person is always addressed who is able to enforce compliance with the regulations in the company. Private individuals such as house owners, apartment owners or owners of private motor vehicles are explicitly excluded due to the restriction on operation. It is similar with an owner of a residential building who has hired a manager. However, owners of tax consultants and architects' offices, as well as owners of law firms are affected. Section 130 OWiG is also applicable in a group , with the result that the management personnel of the group parent company may also have a duty to supervise the subsidiary, although the individual companies are legal entities with their own legal personality. This depends on the specific circumstances of the individual case, whereby the focus is neither on personal links nor on shareholding relationships under company law, but on the actual influence of the parent company on the subsidiary. If the actual influence on the subsidiary restricts its freedom of will and action to such an extent that it can be assumed that uniform management is exercised, the group parent company (and, via Section 9 (1) OWiG, its management bodies authorized to represent) is the owner of the company or company i. S. d. Section 130 (1) OWiG. The function of the business owner is purely factual and does not extend to a specific person. It is therefore not necessary to determine which person in the company has not adequately fulfilled their supervisory duties. Particularly in the case of organizational negligence, the determination of a perpetrator is in fact usually not possible, since the non-existent binding regulation of responsibilities is a core aspect of this culpability. The business owner is therefore always solely responsible for breaches of supervisory duties, regardless of who in the company was the perpetrator of the infringement. It is only important that the infringement was committed in the course of operational activities.

Objective fact

There must be a violation of an obligation applicable to the business owner, the violation of which is threatened with a penalty or a fine. It must therefore always be a violation of a company-related obligation. The farmer is therefore in a food establishment z. B. responsible for compliance with the food law by his employees, but not for their behavior in traffic after work. The owner's position as guarantor extends only to company-related behavior of employees. Company-related are the obligations that exist in connection with the sphere of activity of the company or company and affect the owner as the norm addressee. These obligations result directly from the respective laws and can affect the business owner from a wide variety of points of view.

This does not include duties that affect everyone . Therefore, criminal offenses only fall under Section 130 OWiG in exceptional cases . Examples include Section 352 of the Criminal Code in the case of charges being levied by the employee of a law firm, Section 290 of the Criminal Code in the case of unauthorized use of pawnings by the employee of a pawn shop or Sections 222 and 229 of the Criminal Code when dangerous consumer goods are placed on the market by employees of a department store. A restriction to such special offenses would, however, be too narrow. If an entrepreneur hires a person with multiple criminal records for fraud without first inquiring about them and this person then becomes fraudulent again in the course of business operations, this is also an offense for Section 130 OWiG, since the entrepreneur has the required due diligence who neglected personnel selection.

Moral, violent, theft, insulting offenses and other offenses committed in the company do not fall under Section 130 OWiG, since the business owner cannot be expected to watch over the employees “as they do with care-ordered persons”.

Causal relationship

There must be a causal link between the breach of duty of supervision and the infringement. Adequate supervision should have prevented the infringement or at least made it much more difficult. It is therefore necessary to have a relatively close connection between the operator's negligence and the infringement so that a breach of duty of supervision according to Section 130 OWiG can be affirmed. This is closely related to the fact that the measures taken by the business owner must be necessary and reasonable. The farmer must therefore have neglected his duty of supervision in the area in which the infringement was committed. The neglect of another area is irrelevant for this (example: an employee violates the provisions of food law; the business owner never checks the tax returns of his accounting). This is also the case with the so-called negligence of the business owner when it comes to hiring staff. The reason for the infringement must already be based on the inadequate selection of the employee who committed it.

If an employee acts maliciously to the detriment of the business owner (Exzesstat), the causality is missing, as the business owner cannot influence such behavior through operational guidelines.

Subjective fact

The business owner must accusably fail to take necessary supervisory measures ( Section 130 OWiG is a real omission offense ). The business owner cannot be expected to foresee or be able to foresee every possible violation. The business owner should only have recognized a risk of infringements if the facts had been properly assessed. For the assumption of the negligent inspection, it is sufficient that the person concerned could foresee that his failure to take supervisory measures could have made the infringement possible in the specific case. The infringement must, however, belong to the group of operational risks of infringement.

Perpetrators of the original offense

The infringement does not necessarily have to be committed by a company employee. The agent can also only work temporarily in the company, be a subcontractor or an employee of another commissioned company. The agent can even work for the business owner without a contractual relationship; it is sufficient that he has violated an obligation incumbent on the owner in the performance of business affairs. Above all, the fact that the contractual relationship can be terminated if there is no possibility of control by the business owner must be taken into account. If a control is not possible due to the drafting of the contract, the drafting of such a contract already constitutes a breach of duty of supervision. In the case of actions by external persons, the examination of the causal connection between the duty to supervise and the accusable action requires special attention.

The infringement committed in the company does not have to be a criminal offense or an administrative offense, as the persons who actually commit the infringement are often not at all the addressees of the relevant penal or fine norms. The norm addressee is usually the business owner and not everyone. Even if the employee cannot commit the offense according to the facts, it is still to be credited to the business owner if he is the addressee of the standard that was violated. It is therefore sufficient if the agent commits an act threatened with a penalty or a fine, even if he himself could not be punished for it. The act only has to be unlawful , but not necessarily reproachable , since it depends purely on the realization of the external facts. Any lawful act can not fall under this norm simply because of the wording of Section 130 OWiG (“threatened with a penalty or fine”).

Degree of fault

It does not depend on the degree of fault of the offender, but only on the fault of the business owner in neglecting his duty of supervision. There may be an intentional breach of duty of supervision according to § 130 OWiG, even if the person acting negligently acted (example: the business owner deliberately has a customs declaration incorrectly submitted by a bona fide employee). If a standard that can only be intentionally implemented (e.g. damage to property ) is negligently committed by an employee due to a breach of duty of supervision, the business owner can nevertheless be prosecuted for this breach of duty if he could have prevented this by performing his duties ( Example: an employee who does not have a forklift driver's license accidentally damages someone else's vehicle due to an operating error on the forklift; if the business owner had ensured that only people who are knowledgeable about handling forklifts could drive the forklifts, he could have prevented this; the breach of duty of supervision is to be affirmed).

attempt

If the infringement has only been attempted, Section 130 OWiG is only relevant if the attempt is also punishable.

Filing offenses

If the violation is an application offense , only the violation of the supervisory duty can be prosecuted upon application according to Section 131 (2) OWiG.

Type and scope of the supervisory measures

The law does not define the type and scope of the supervisory measures in more detail. They are to be adapted to the respective individual case, in particular to the degree of danger that an infringement could be committed, the size of the organization, the complexity of the tasks to be monitored and, finally, their practical feasibility. Cases of illness, vacation and a longer absence of the business owner must also be taken into account. As a rule, the supervision of a diligent member of the respective field of activity can be assumed as a measure of appropriate supervision. Feasible and reasonable organizational measures must be taken that are necessary and suitable for observing the relevant regulations, without an authority having to dictate to the operations manager how to run his business. In principle, the supervisory measures must be designed in such a way that it can be assumed that all regulations will be complied with in all probability. Here, however, the personal responsibility of the employees must be taken into account. The supervisory measures must also take into account the dignity of the employees and an acceptable working atmosphere.

If the operation has already been noticed due to irregularities, an increased duty of supervision is necessary in order to avoid repetition. This is already the case if a violation must be expected, e.g. B. in the case of technically unsuitable / unskilled personnel. If legal provisions are affected in the company, non-compliance with which can lead to considerable endangerment or damage to the general public, an increased duty of supervision is also indicated. Particularly careful supervision is also required for regulations that change frequently or for difficult legal issues. If, on the other hand, the situation changes for the better (e.g. the induction phase of a new employee is over and he is well-trained in his area), supervision can be reduced to a normal level. The decision about these things is up to the business owner.

Supervisors

If the business owner is unable to fulfill his supervisory duties due to the size or scope of his business, he must appoint supervisors. The selection of these people is subject to an increased duty of care compared to the employment of normal employees, in particular the review of professional career, specialist knowledge and personal reliability. These supervisors are to be constantly monitored by the company owner. This monitoring can also be done by random sampling. If this is not possible due to the size of the company, an inspection department must be set up.

The supervisors are to be instructed in detail by the company owner about their duties, unless this knowledge is part of their proven expertise. The business owner always has the organizational obligation in his company. Conversely, this means that an organizational deficiency in the company also represents a breach of duty within the meaning of Section 130 OWiG. Therefore, in large companies, precise organizational arrangements and written organizational plans ( business distribution plan ) are necessary in order to be able to show that these obligations have been adequately met. If it is not possible to determine in whose area of ​​responsibility an infringement was committed, there is already a regular lack of organization. This is also the case if the responsibility is too low in the hierarchy or if the person in charge is clearly overwhelmed. The overall supervision always remains with the business owner, who regularly has to personally convince himself of the compliance with the regulations.

Permanent violation of the duty of supervision

If there has been a breach of supervisory duties for a limited period and the same or similar violations have been committed several times during this period, only a fine is to be set. If, on the other hand, there is a permanent lack of interest in compliance with the regulations on the part of the business owner, this is not a permanent breach of duty and the violations must be punished individually. If the violations of different legal provisions occur close together, one can generally assume that there are individual violations of supervisory duties, which are punished individually.

Practical example

A company imports a set of goods from China consisting of a clothing upper and a lower part, which are put up in packaging for retail sale, valued at around € 100,000. These goods are declared as “tracksuits” at the responsible customs office and cleared for free circulation . According to Section 10 of the Foreign Trade and Payments Act (AWG) old version, in conjunction with the import list , the import of training suits is permitted without a permit.

During a later check it is found that the goods do not have any narrowing cuffs on the sleeves or legs and the waist. The goods are therefore not tracksuits in the sense of the customs tariff and must be declared separately as tops and bottoms, each with half the value. However, these tops and bottoms are goods of textile categories 5 and 6 and therefore require an import permit.

So the goods were imported without authorization. This is an administrative offense in accordance with Section 82 (3) AWV and can be punished with a fine of up to € 30,000 in accordance with Section 19 (4) No. 2 and (6) AWG.

Such violations are reported by the customs office to the competent administrative authority, in the case of violations of the AWG this is the Oberfinanzdirektion (OFD). This then decides on the further procedure.

The OFD initiates fine proceedings. This is initiated against the management of the importing company because of the suspicion of a breach of duty of supervision and not against the responsible customs clerk of the company because of the unauthorized import. The management should have ensured that the employee did not submit a false registration. This is also done for practical reasons, as the employee does not have the financial strength to pay a reasonable fine. Furthermore, the company is also the beneficiary of the act, since it has acquired possession of the goods without an import permit. Since it is not always clear, especially with large companies, which member of the management is responsible for the breach of duty of supervision, the company's secondary participation according to § 30 i. V. m. 88 OWiG. The company has to pay for fines imposed on the management.

In order to be granted the import permit, the company would have had to submit an export permit from the Chinese authorities. The issuance of such a permit is linked to the payment of export license fees (quota costs). In this case the quota costs would have been around € 120,000. (For category 5 goods, the price is often below the quota cost, which offers a special incentive for violations in this segment).

Since the fine pursuant to Section 17 (4) OWiG is intended to skim off the offender's economic advantage, it will not be less than € 120,000, unless the offender's financial circumstances do not allow such a high payment.

Example exhaust scandal

In the emissions scandal , the Braunschweig public prosecutor's office issued a fine against VW in 2018 for breach of duty of supervision (Sections 30, 130 OWiG). It was based on a violation of Section 27 of the EC Vehicle Approval Ordinance (EG-FGV), which is subject to a fine ( Section 37 EG-FGV). The relevant supervisory obligation was violated ( Section 130 OWiG), and this violation of the supervisory obligation was attributable to the company ( Section 30 OWiG). The amount of the fine is made up of a penalty portion of 5 million euros (upper limit also in the case of a negligent criminal offense, cf. section 30 (2) sentence 1 no. 2 OWiG) and a levy portion ( section 17 (4) OWiG) of 995 Million Euros.

In September 2019, Daimler AG was fined 870 million euros for breach of supervisory duties.

See also

literature

  • Christian Caracas: Responsibility in international corporate structures according to § 130 OWiG - Using the example of bribery in business transactions with no punishments abroad, Nomos Verlag, Baden-Baden 2014, ISBN 978-3-8487-0992-2
  • Göhler: Law on administrative offenses. Beck's short commentary, Verlag C. H. Beck, ISBN 3-406-48591-X
  • Lothar Senge (Ed.): Karlsruhe Commentary on the OWiG. 3rd edition 2006
  • Joachim Bohnert: Administrative offense law - plan for practice and training. Verlag De Gruyter Recht, ISBN 3-89949-109-2
  • Olaf Kreuzer: The breach of duty of supervision - A wallflower. In: AW-Prax. May 2003, pp. 189-190
  • Dirk HV Adam: The limitation of the duty of supervision in the regulation of § 130 OWiG. In: wistra. 8/2003, pp. 285–292 (see also wistra. 2001, pp. 478 ff.)

Web links

Individual evidence

  1. ↑ § 25 OWiG 1968; Reason: BT-Drs. V / 1269 pp. 67-71
  2. ↑ Göhler Rn. 2.
  3. ↑ OLG Hamm VRS 40, 129, 130; Dannecker NStZ 1985, 49, 56.
  4. ↑ BayObLG JR 1973, 28.
  5. ↑ BGH WuWE 2148; Göhler Rn. 3a.
  6. ↑ BayObLG DB 1972, 2392.
  7. ↑ a b c Göhler Rn. 18th
  8. ↑ OLG Munich (3rd criminal senate), decision of September 23, 2014 - Az. 3 Ws 599/14, 3 Ws 600/14; see decision discussion by Caracas in CCZ 2016, p. 44 ff.
  9. ↑ Caracas: Responsibility in international corporate structures according to § 130 OWiG - Using the example of bribery in business dealings with no punishments abroad, pp. 84 ff., Nomos Verlag, Baden-Baden 2014, ISBN 978-3-8487-0992-2 ; also in CCZ 2015, p. 167 ff.
  10. ↑ a b c Göhler, Rn. 19th
  11. ↑ BGH NStZ 1985, 77; OLG FfM wistra 1985, 38; Higher Regional Court Karlsruhe The Justice 1980, 395
  12. ↑ a b Göhler Rn. 17th
  13. ↑ a b OLG Düsseldorf wistra 1991, 275, 277.
  14. ↑ Justification for § 25 EOWiG, BT-Drucksache V / 1269 p. 68.
  15. ^ Higher Regional Court Karlsruhe VRS 55, 442, 445.
  16. ↑ Göhler Rn. 22nd
  17. ↑ OLG Hamm VRS 40, 129, 130.
  18. ↑ OLG Cologne JMBlNRW 1973 188th
  19. ↑ OLG Karlsruhe The Justice 1980, 395.
  20. ↑ Göhler Rn. 9.
  21. ↑ OLG Cologne GewArch 1974, 141, 143.
  22. ↑ OLG Hamm NStZ 1992, missing
  23. ↑ BGH MDR 1982, 461, 462.
  24. ↑ BayObLG wistra 1999, 72, 73.
  25. ↑ Göhler Rn. 21st
  26. ↑ BGH NStZ 1986, 34.
  27. ↑ a b Göhler Rn. 12.
  28. ↑ OLG Düsseldorf VRS 63, 286.
  29. ↑ Göhler Rn. 10.
  30. ↑ BGH WuW 1981, 746; OLG Stuttgart NJW 1977, 1410.
  31. ↑ Göhler Rn. 11.
  32. ↑ BGH wistra 1986, 222; Higher Regional Court Koblenz MDR 1973, 606.
  33. ↑ a b OLG Koblenz VRS 50, 54, 57.
  34. ↑ OLG Hamm GewArch 1973, 121.
  35. ↑ Göhler Rn. 13.
  36. ↑ OLG Koblenz VRS 65, 457, 458.
  37. ↑ OLG Stuttgart wistra 1987, 35; BGHSt 27, 196, 202.
  38. ↑ BayOLG wistra 1988, 320, 321.
  39. ↑ BGHSt 27, 196, 202 f.
  40. ↑ OLG Düsseldorf VRS 39, 46, 447 f.
  41. ↑ BGH wistra 1982, 34; OLG Cologne wistra 1994, 315.
  42. ↑ OLG Hamm VRS 40, 370, 373; OLG Stuttgart NJW 1977, 1410.
  43. ↑ Göhler Rn. 14th
  44. ↑ OLG Hamm JR 1971, 383.
  45. ↑ OLG Hamburg VRS 49, 257, 258; Higher Regional Court Koblenz LRE 22, 69, 73.
  46. ↑ BGH wistra 1987, 148; OLG Stuttgart Die Justiz 1979, 389; Higher Regional Court Karlsruhe BewArch 1976, 161.
  47. ↑ Göhler Rn. 16.
  48. ↑ BGHSt 40, 138; OLG Hamburg VRS 49, 257.
  49. ^ Higher Regional Court Karlsruhe VRS 55, 442.
  50. ↑ Press release from the Braunschweig public prosecutor's office from June 13, 2018 ( memento of the original from June 14, 2018 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. ; on the whole also administration of the German Bundestag, elaboration PE 6 - 3000 - 14/17 sanction possibilities due to defeat devices @1@ 2Template: Webachiv / IABot / www.staatsanwaltschaften.niedersachsen.de
  51. ↑ tagesschau.de: Diesel scandal: Daimler has to pay 870 million euros. Retrieved September 24, 2019 .