What options are available in the event of administrative offenses against companies and managers?

One of the most common administrative offenses in the commercial context is the violation of the duty of supervision pursuant to Section 130 of the German Administrative Offenses Act (OWiG). This accusation comes into consideration if:

• Necessary supervisory measures to prevent criminal offenses or administrative offenses in the company are omitted
• employees commit breaches of duty that could have been prevented or made more difficult by appropriate supervision

In addition, the following violations can result in fines against companies and managers:

Bookkeeping and accounting violations

Managing directors can be held liable for administrative offenses in connection with bookkeeping and accounting, such as

• Incorrect or incomplete presentation of the company's circumstances in the balance sheet
• Violation of retention obligations for business documents
• Delayed or omitted submission of the annual financial statements to the Federal Gazette

Violations of labor law regulations

This includes administrative offenses such as

• Non-compliance with working time regulations
• Violations of occupational health and safety regulations, in particular violations of the BetrSichV (risk assessment not carried out, not carried out correctly or not carried out on time; violation of the obligation to carry out recurring inspections of systems requiring monitoring)
• Employment of employees without a valid work permit

Administrative offenses under tax law

Managing directors can be prosecuted for tax offenses, for example:

• Late submission or failure to submit tax returns
• Incorrect record keeping for tax purposes
• Failure to pay social security contributions

Data protection violations

With the increasing importance of data protection, violations of the GDPR can also be punished as an administrative offense, for example:

• Insufficient implementation of data protection measures
• Non-compliance with information obligations towards data subjects
• Failure to report data breaches

Violations of competition law

Administrative offenses in the area of competition law can also affect managing directors, for example:

• Violations of advertising guidelines
• Unfair business practices
• Non-compliance with labeling requirements for products

It is important to emphasize that directors can be held accountable not only for their own misconduct but also, in some circumstances, for failing to monitor and control their employees. The introduction of effective compliance systems and regular training can help to minimize the risk of such misconduct

In misdemeanor law, there are various options for discontinuing proceedings:

1. discontinuation by the prosecuting authority

The prosecuting authority (usually the administrative authority) has discretionary powers when prosecuting administrative offenses. It can discontinue the proceedings as long as they are pending.

2. judicial cessation

Discontinuation due to inappropriate punishment

The court may discontinue the proceedings in any situation with the consent of the public prosecutor's office if it does not deem it necessary to impose a penalty. The consent of the public prosecutor's office is not required if:

• A fine of up to 100 euros was imposed by the fine notice
• The public prosecutor has declared that he will not take part in the main hearing

Recruitment in the main hearing

In the main hearing, the court may discontinue the proceedings without the consent of the public prosecutor's office if the latter is not present. The representative of the administrative authority is given the opportunity to comment, but cannot prevent the proceedings from being discontinued

Recruitment outside the main hearing

If the case is discontinued by written decision outside the main hearing, the prior consent of the public prosecutor's office is required.

3. discontinuation by the public prosecutor

The public prosecutor can discontinue the proceedings for both the criminal offense and the misdemeanor. In this case, he will issue a single discontinuation order.

Important notes

• The discontinuation of proceedings may not be made dependent on the payment of a fine in administrative offense proceedings.
• A discontinuation order becomes legally binding immediately, as an appeal is expressly excluded.
• If the case is dropped due to the statute of limitations, the public prosecutor's consent is not required at the main hearing.

Effective defense: Limiting financial consequences and avoiding entry in the central trade register

An entry in the central trade register can have far-reaching negative consequences:

• Authorities, public clients and courts have access to this information and use it to check the reliability of companies.
• There is a risk of losing your business license, which can severely restrict your legal capacity.
• The company's reputation can be permanently damaged, leading to a loss of trust among customers, partners and investors.