Conflict of interest

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The conflict of interest (also conflict of interest or conflict of interest ) is a conflict that arises from the clash of opposing interests in a person , which have their origin in the different status of this person.

General

On the one hand, the person has to protect the interests of another for contractual , legal or moral reasons; on the other hand, they are at the same time a private person with their own interests or are in a further relationship to safeguarding external interests, on the basis of which they have to safeguard conflicting external interests. “Protecting interests” means that the person has to make decisions in order to enforce their own interests or those of others.

Conceptual content

A uniform understanding of the term “conflict of interest” has not yet developed. Even company and capital market law codified by EU directives , which contain extensive regulations for dealing with conflicts of interest, do not define the term. The conflict of interest also occurs as a legal term (e.g. in Section 1897 (5) BGB , Section 27 KAGB , Section 43a (4) BRAO or Section 53 WiPrO ); however, the laws avoid a legal definition . Definitions also fail because the homonym “interest” ( Latin inter esse , “to be in between”, “to be there”) is difficult to grasp. It can be understood as a "positive relationship" that a legal subject has to certain legal objects or facts . The pursuit of all goals ( personal goals , company goals such as factual goals or formal goals ) is part of the interest. The intrapersonal conflict ( Latin confligere , “to meet”), on the other hand, presents itself as the incompatibility of contradicting interests ( conflict of goals ). It cannot be accepted for organizational or ethical - mostly professional ethical - reasons, as it has a counterproductive effect in the sense of higher valued values, interests or goals.

A commonly used definition of conflict of interest goes back to Dennis F. Thompson, who published it in the New England Journal of Medicine in 1993.

"A conflict of interest is a set of conditions in which professional judgment concerning a primary interest (such as a patient's welfare or the validity of research) tends to be unduly influenced by a secondary interest (such as financial gain)."

- Dennis F. Thompson

It is essential to the definition that the conflict of interest begins when there is a risk of influencing, and not only when such influencing has actually taken place. Secondary interests do not have to be of a material or specifically financial nature, they can also be of a non-material nature. Examples of this are the desire to support friends or the pursuit of recognition.

Based on Thompson's definition, the Association of Scientific Medical Societies developed its own definition: “Conflicts of interest are defined as conditions that create a risk that professional judgment or action that relates to a primary interest is inadequate by a secondary interest being affected."

In 2006, the OECD defined the conflict of interest for public servants as follows: “A conflict of interest is a conflict between the official duties and the private interests of a public servant, in which the interests of a public servant in his capacity as a private person , the performance of his official duties and influence responsibilities in an unreasonable way ". This definition applies to all employees vis-à-vis their employers or third parties .

economy

Conflicts of interest arise when an authorized representative , functionary , appraiser , representative , deputy or other function holder on the one hand perceives the external interests of his principal or client , but on the other hand also pursues self-interest as a private person . For example, if a financial market participant has several interests that could induce him to misuse or withhold information that is necessary for the proper functioning of the financial markets , a conflict of interests exists.

A member of the supervisory board of a stock corporation may not also be a member of the management board ( Section 105 (1 ) AktG ). The separation of functions required here also prevents a conflict of interests. A conflict of interest also exists if a member of the Supervisory Board, as a borrower, has non-performing loans with the credit institution with which he is also a member of the Supervisory Board. A moral risk is that employees use the resources or information they control or process for their own personal benefit and not for that of the company.

For example, anyone who, as a bank employee, receives information relevant to the exchange rate on business and exploits this as a private person through private transactions before this information has become publicly known, is acting as an insider . An Insider trading is according to Art. 8, paragraph 1, sentence 1 Market Abuse Regulation (MMVO) before when someone a financial instrument directly or indirectly acquires using inside information for their own or a third party or disposed of. This insider trading is punishable according to Section 119 (5) WpHG .

There are also pronounced conflicts of interest in financial advice / investment advice and asset management . Consultants receive commissions from credit institutions and product providers when they recommend certain financial products to their customers . High costs are always at the expense of the customer's return - financial instruments with high bank fees also trigger higher reimbursements . The conflict of interest is increased because the commissions are hidden as internal commissions (even after the introduction of the Financial Market Directive ). The German BaFin, for example, stipulates: "In the event of any conflicts of interest, the interests of the investment services company must generally take precedence over the interests of customers."

Other areas

Examples of other conflicts of interest:

Whistleblowers also enter into a conflict of conscience when they are confronted with the dilemma of betrayal ( state secret , trade and business secret , banking secrecy ) and the public interest in the publication of certain information . The ultimate goals of the betrayal of secrets are to be seen in the prevention of the processes perceived as grievances and the end of the conflicts of interest existing with the whistleblower.

Self-contract

The self- dealing ("self-contracting") is prohibited according to § 181 BGB, so that conflicts of interest are restricted. It is characterized by a person's identity, in which the representatives of the one and the represented by him Business Men the other party of the business is. However, the terms self-contracting and conflict of interest are not congruent; because, on the one hand, not all self-dealings create a conflict of interest; on the other hand, transactions not even contracted can trigger a conflict of interest.

Avoidance

To avoid conflicts of interest, a distinction must be made between personal and organizational conflict prevention. The person affected by a potential conflict of interest becomes aware of their dilemma of the conflict in good time and makes a decision either in the interests of others or in their own interest. As an instrument for avoiding conflicts of interest in the company's internal area, a company organization that prevents conflicts can primarily be considered. Chinese walls in banks, for example, the physical and organizational separation ( separation of functions ) of extraneous emission and securities analysis , trading and settlement , back office and customer management . This so-called compliance organization is also aimed at avoiding or controlling the conflicts of interest that arise between the company and its customers and between customers when providing securities services , trading transactions or lending transactions .

literature

  • David Klemperer: What is a conflict of interest and how do you determine it? In: Klaus Lieb, David Klemperer, Wolf-Dieter Ludwig (eds.): Conflicts of interest in medicine. Background and possible solutions. Springer-Verlag, Berlin / Heidelberg 2011, doi : 10.1007 / 978-3-642-19842-7_2

Individual evidence

  1. ↑ Conflict of interest, rare conflict of interest, the. In: duden.de. Retrieved October 31, 2018 .
  2. ↑ Christoph Kumpan: The conflict of interest in German private law. 2014, p. 27 f.
  3. ↑ Christoph Kumpan: The conflict of interest in German private law. 2014, p. 11.
  4. ↑ Christoph Kumpan: The conflict of interest in German private law. 2014, p. 15.
  5. ↑ Christoph Kumpan: The conflict of interest in German private law. 2014, p. 56.
  6. ^ Dennis F. Thompson: Conflicts of Interest. In: New England Journal of Medicine. 330, 1994, pp. 503-503, doi : 10.1056 / NEJM199402173300713 .
  7. ↑ David Klemperer: What is a conflict of interest and how do you determine it? In: Klaus Lieb, David Klemperer, Wolf-Dieter Ludwig (eds.): Conflicts of interest in medicine. Background and possible solutions. 2011, p. 18.
  8. ↑ David Klemperer: What is a conflict of interest and how do you determine it? In: Klaus Lieb, David Klemperer, Wolf-Dieter Ludwig (eds.): Conflicts of interest in medicine. Background and possible solutions. 2011, p. 17.
  9. ↑ Recommendations of the AWMF for dealing with conflicts of interest in professional societies. Developed by an ad hoc commission of the AWMF and approved by the presidium of the AWMF on April 23, 2010.
  10. ↑ OECD, OECD Guidelines for Handling Conflicts of Interest in the Public Service , 2006, p. 8.
  11. ^ Andrew Crockett, Trevor Harris, Frederic S. Mishkin, Eugene N. White: Conflicts of Interest in the Financial Services Industry . In: Geneva Reports of the World Economy . tape 5 , 2004, p. 4 (English).
  12. ↑ Shyam Sunder: Political-economic considerations on the collapse of accounting in the USA . In: The auditing . 2003, p. 145 .
  13. ↑ Code of Conduct. Federal Financial Supervisory Authority, March 22, 2016, accessed on November 25, 2018 .
  14. ^ Susanne Offermann-Burckard: Conflict of Interest - What every lawyer should know. In: Anwaltsblatt 6/2008, p. 446 ff.
  15. ^ GA Jelinek, SL Neate: The influence of the pharmaceutical industry in medicine . In: Journal of Law and Medicine . 17, No. 2, October 2009, pp. 216-223. PMID 19998591 .
  16. ↑ B. Lo: Serving two masters - conflicts of interest in academic medicine . In: NEJM . 362, No. 8, February 2010, pp. 669-671. doi : 10.1056 / NEJMp1000213 . PMID 20181969 .
  17. ↑ SN Young: Bias in the research literature and conflict of interest: an issue for publishers, editors, reviewers and authors, and it is not just about the money Archived from the original on April 20, 2013. Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. In: J Psychiatry Neurosci . 34, No. 6, November 2009, pp. 412-417. PMID 19949717 . PMC 2783432 (free full text). Retrieved March 27, 2010. @1@ 2Template: Webachiv / IABot / www.cma.ca
  18. ↑ International Committee of Medical Journal Editors (icmje)
  19. ^ World Association of Medical Editors (wame)
  20. ↑ Alexander Classen: Representation of interests in the European Union. 2014, p. 252.
  21. ^ Dieter Medicus : Civil law. A presentation on exam preparation , arranged according to the basis of entitlements , 1968; 23rd, revised edition with Jens Petersen , 2015, ISBN 978-3-8006-3908-3 , no. 112-113.
  22. ^ Stephan Festner: Conflicts of interest in German and English representation law. 2006, p. 106.
  23. ^ Stephan Festner: Conflicts of interest in German and English representation law. 2006, p. 18.
  24. ^ Dieter Eisele: Insider Law and Compliance. In: WM 1993, p. 1021 ff.
  25. ^ Ulrich L. Göres: Conflicts of Interest of Securities Service Providers and Analysts in Securities Analysis. 2004, p. 83.