In the past Compliance Management has often failed, the Volkswagen emissions scandal just being one prominent example. Not everything has to be reinvented, and not everything that companies have done in the past regarding Compliance is wrong. But it is about time to think Compliance in new ways. What does “Compliance Management 2.0” really depend on? The following article aims at laying out the cornerstones for enduring effective Compliance which amongst others comprises sincerity and credibility and a moral foundation. Furthermore, the commitment and role model behavior of top managers and the training of line managers are crucial for the effectiveness of any Compliance Management System (CMS). Ultimately, for Compliance to function efficiently the efforts must be adequate for the respective company and realistic regarding the achievable goals.

No description available.

As the number of government investigations in the corporate and public sectors increases worldwide, the interest in implementing effective internal rules to avoid non-compliance with the law and its many negative consequences is growing. In this context, one may think primarily of the general concept of Compliance, without considering its various forms in different areas of law. In particular, Compliance with regard to criminal law - also referred to as 'Criminal Compliance' – has received greater attention in recent years. What applies in general to Compliance is particularly true for Criminal Compliance: Only a Compliance Management System tailored to the individual company can effectively prevent criminal offences.

This article outlines the research program of a “criminology of crime avoidance” using the example of the preemptive use of legal opinions by white-collar actors to shift the boundaries of the law in their own favor. For this purpose, the term creative compliance is introduced and explained with regard to the Cum-Ex scandal in Germany. Then, a look is taken at possible criminological explanations for the phenomenon. Finally, the hypothesis is developed that law enforcement personnel is deterred from investigations by the reputational capital of certain legal advisors.

No description available.

The following blink reflects the personal experiences and takeaways made by the author during a selected program at Harvard Business School during March 2022 to August 2022. It is neither intended to pretend, assert, or even assume that similar experiences are not possible in applicable universities or learning institutions at any other place nor is the author financially bonded of either receiving gratuities or benefits of some kind to/from Harvard Business and/or Law School. Therefore, the blink is an aftermath of the specific experience in an extraordinary divers and professional learning environment that has been.

No description available.

Compliance requirements for companies are growing, especially in the fields of ESG (Environmental, Social, and Corporate Governance) and data privacy. The phenomenon can be observed not only within the EU, but also many other areas of the world. Within the regulatory environment, fostering ESG practices has long since developed from a voluntary commitment to a “real” compliance issue which lawmakers are driving forward with serious sanctions and which courts are also shaping within the framework of the evolving laws. These laws are very complex, often unclear, and intrude deeply into the areas of risk analysis and risk management, which traditionally represent a core responsibility of companies. Many regulations emphasize development and implementation of internal processes within companies. This greatly reduces companies’ discretionary powers, since responsible use of leeway is a core area of entrepreneurial decision-making governed by the business judgment rule. Structurally, we are seeing increased legalization of risks, through which the legislator de facto takes away companies' leeway to make entrepreneurial decisions. Also, the threat of severe fines and uncertainty about the interpretation of legal terms makes it difficult for companies to decide what needs to be done to meet the laws’ requirements and to avoid risk. Looking at the char acter of the regulations, we see value-driven and symbolically-charged laws. However, these laws are anything but “dead letters” - they intervene deeply in companies’ risk management, aim at changing behavior, and have sharp “teeth” in the form of sanctions. The EU may be a particularly fertile source of symbolic legislation, which can serve to create political identity. Companies can, however, choose different ways to deal with these challenges, and they are free to find the right path. Even if lawmakers are increasingly intervening in the way companies carry out risk analyses and the priorities they set in that context, companies should defend their leeway and use it wisely. It is of utmost importance to know the real risks well and to use leeway responsibly. A diligent risk analysis, carefully aligned to a company’s circumstances and needs, is always a good starting point. Perfect knowledge of applicable laws and the company’s operations is a prerequisite for a professional risk assessment and building an effective Compliance Management System (CMS). There is always room for balanced decision-making regarding risk assessment and prioritization in accordance with the business judgment rule and entrepreneurial responsibility.

In the situation where the environmental issue is becoming an increasingly addressed issue, and the legislator in various legislative acts imposes new and new regulations with a nature of environmental protection, it becomes difficult to identify whether, being incorporated in the text of a certain law, a certain legal norm, belongs to environmental law or is a norm that belongs to the field which in substance represents the regulatory object of this law. In other words, it is often quite complicated to identify the boundary of environmental law regulations, especially since the norms of this branch are not always compactly found in environmental legislative acts. It must be recognized that the legal mechanisms for environmental protection change their appearance over time, becoming much more aggressive and relentless. They are often applied without taking into account certain traditional rules and presumptions that often do not ensure effective protection of the environment. In such cases, it is necessary to understand that the regulatory mechanisms for environmental protection are a component of environmental law, even if they are based in other legislative acts and even if they are very similar to the mechanisms used in the regulation of other categories of legal relations.

The text discusses the concept of 'internal investigations' in legal contexts, emphasizing the lack of a specific legal definition in the USA, Germany, and Austria. It explains that internal investigations, often triggered by suspicions of legal violations by company employees, aim to systematically process and resolve such cases. The distinction between compliance (prevention) and internal investigations (response to suspected violations) is highlighted. The article explores the role of external investigators, often lawyers or auditors, in conducting internal investigations, emphasizing the need for coordination between auditing and legal aspects. It discusses the historical development of internal investigations in the German-speaking countries and their increasing importance in recent years. The second part of the text delves into the importance of company behavior in response to suspected violations. If the offense benefits the company, the focus is on exoneration, with potential benefits such as penalty suspension through active repentance or self-disclosure. The article also discusses legal conditions for penalty annulment, emphasizing timely actions in internal investigations. The text addresses the role of the public prosecutor's office and legal considerations in refraining from prosecuting a company based on its behavior during internal investigations. It stresses that a positive impression, compliance measures, and transparent cooperation can influence the decision to refrain from prosecution. The final section outlines criminal liability risks for internal investigators, citing potential offenses such as coercion, violation of correspondence secrecy, unlawful use of a computer system, violation of telecommunications secrecy, and abuse of audio recording or listening devices. The discussion includes legal considerations and justifications for certain actions, emphasizing the importance of balancing interests and goods, especially in legal proceedings.