Report

6th Viadrina Compliance Congress

10-11 July 2018, Ottobock Science Center Berlin 

Under the title "From the past into the future of compliance development" the 6th Viadrina Compliance Congress took place in the Ottobock Science Center in Berlin. The meeting was organized by the Viadrina Compliance Center in conjunction with the Compliance Academy. The conference, which consisted of four panels, provided the opportunity to find out about current compliance developments. The first day of the conference focused on incentive models and common compliance standards. On the second day of the conference, the transparency and disclosure requirements were examined as compliance control. In addition, legal certainty and reliability of internal investigations were presented.

Welcome and opening

The conference consisted of four thematically structured panels. The 6th Viadrina Compliance Congress began with a warm welcome from all guests by Niels Helle-Meyer (European University-Viadrina), Elisabeth Quack (Ottobock Science Center), Dr. Rainer Markfort (DICO), Susanne Friedrich (Alliance for Integrity) and Prof. Dr. Bartosz Makowicz (Viadrina Compliance Center). In this part of the conference, it was emphasized that not only companies but also public institutions are confronted with the issue of compliance. This year 's edition of the conference focused on the national level as compliance evolution has taken on a new dimension. The opening speech highlighted the success of the Viadrina Compliance Congress as a common exchange platform for science, business and administration representatives.

Honorary Lecture

The first panel of the conference was presented with the honorary lecture by Prof. Dr. Bartosz Makowicz (Viadrina Compliance Center) and Prof. Dr. Christoph Brömmelmeyer (European University Viadrina). Firstly, the word Prof. Dr. Bartosz Makowicz and presented the current compliance developments. Legislators, administration and the judiciary are calling for the introduction of efficient CMS. With the coalition agreement, the corporate sanction was reorganized in 2018. The aim is to achieve the effective and adequate prosecution of white-collar crime. In addition, internal investigations have been reorganized, in particular through confiscated documents and search, and incentives for disclosure. The global business environment is becoming riskier. The importance of checking the business partners is always increasing. CMS (Compliance Management System) is an integral part of the compliance structure.

Afterwards, the word Prof. dr. Christoph Brömmelmeyer. According to BGH judgment of 09.05.2017, the imposition of a fine on a legal entity that has implemented an effective compliance management system designed to avoid infringement can result in a reduction of the fine. However, the timing of the assessment of the measures is questionable. What is certain is that an effective CMS should make law enforcement much more difficult.

1st panel: incentive models through compliance reward: impact, codification and future

The first panel of the conference was dedicated to incentive models through compliance rewards. The presentation of this panel was done by Prof. Dr. med. Christoph Brömmelmeyer. Dr. Katrin Roesen from the Bundeskartellamt gave the first lecture. The speaker emphasized that companies that commit serious economic offenses should not benefit from public contracts and concessions. In future, the introduction of the competition register will allow public procurers to check nationwide, with a single electronic query, whether relevant infringements have occurred in a company. The competition register will be operational in 2020. Queries in the competition register can only be made by contracting authorities in the context of procurement procedures. The register will not be visible to the public.

In the next lecture, Holger Beutel talked about compliance in foreign trade. Enterprises that participate in foreign trade and whose product range includes goods or goods that can be used for a critical purpose are required to implement an in-house compliance program. Only reliable companies get a permit. The concept of reliability is not legally defined. Reliability is compliance with applicable laws, which can be equated with the compliance term.

The next one took Dr. Amr Sarhan, judge of the district court Cologne, commenting on the question whether CMS can influence milder bandage. In his opinion, CMS must actually have an impact or significantly reduce risk. Decisive are the special circumstances of the individual case. Thus, a CMS can have an impact on the fine if it is credible, assertive and risk-tolerant.

Furthermore, Dr. Klaus Moosmayer on the relationship between internal investigations and compliance. In order to comply with compliance obligations, the company can create incentives. Also required are incentives for public corporations. Companies that inform and report infringements internally within the framework of good compliance need legal certainty that they will not be punished for their own behavior. As a consequence, a legal regulation is required.

2nd panel: Compliance at different speeds or on the way to a common, cross-industry standard?

The second panel of the conference, moderated by Prof. Dr. Peter Fissenewert (Buse Heberer Fromm) addressed the question of whether compliance is at different speeds or on the way to common, cross-industry standards. The first presentation was given by Ralf Stracke, Head of Compliance at Deutsche Kreditbank AG. The speaker explained that the German banking industry has brought 2017 a host of new regulations, which are to be integrated into the processes of the banks. The regulations should be regarded as an opportunity. Money laundering prevention is a state task. Thus, the state should also provide "tools".

The next step was taken by Lutz Cauers (Deutsche Bahn AG). Compliance work should focus on integrity and prevention. The goal is to prevent possible breaches in advance as a fair and trustworthy business partner. CMS is based on international and national legal requirements as well as standards. This is to ensure that compliance risks are identified early on and that appropriate measures are taken.

Birgit Laitenberger (Federal Ministry of the Interior), spoke about compliance in the public administration. Laitenberger emphasized that compliance should be seen more as prevention work. Public administration must act with integrity in order to gain public trust, as it has political responsibility. With the annual reports on "Preventing Corruption in the Federal Administration", the Federal Government gives an account to the German Bundestag.

In the last presentation of the panel, Martin Stadelmeier (Stuttgart Airport GmbH), talked about the organizational structures of a compliance unit. Risk management, policy management, organizational structure and process organization should ensure that risks to business and reputation are recognized early on and avoided. The further implementation of an integrated compliance management is an important goal of the FSG and thus also part of the fairport program. The compliance management system consists of the three building blocks fairport code, database and training.

3rd panel: Greater transparency and disclosure requirements as compliance control

Under the moderation of Florian Schall (Deloitte Legal Rechtsanwaltsgesellschaft mbH), the third panel entitled "Increased Transparency and Disclosure Obligations as Compliance Control" took place on the second day of the event.

Prof. Dr. Sonja Wüstemann opened the panel with a presentation from the standpoint of business administration.Her  background knowledge was primarily devoted to economic relationships, observations and studies on the possible effects of the increased transparency requirements on the capital market. Among other things, she referred to the fact that companies should not consider the increased disclosure requirements as a burden, but the economic benefits are available and always important as an incentive to comply with the disclosure requirements.

As a representative of the Bundesanzeiger Verlag, Ulf Krause presented in detail the Transparency Register, which has been in operation since the middle of last year, and commented on the previous observations made by the companies in this respect. What is new is that the beneficial owners, ie the true owners of companies, must be disclosed and this presents a challenge for a large number of entrepreneurs, as they are not even sure whether they are required to register in the Transparency Register. The possibility of accessing the Transparency Register, which is reported to be used by journalists, is particularly special. Here Ulf Krause emphasizes that the inspection is only possible with the presentation of a legitimate interest.

In addition, Dr. Andreas Novak of Transparency International Germany e.V. in his statement first on the competition register, which will include entries on criminal offenses, misdemeanors and other violations. As an experienced person in the area of ​​compliance, he also dealt with questions concerning the protection of whistleblowers, which for him is not only a legal, but also a social matter. In Germany, the protection of whistleblower is not yet sufficiently well developed and this is largely due to the fact that the social position of such an informant is associated with negative consequences. There is also a lack of labor protection in this area.

As a representative of the SMS GmbH and as a member of the board of the DICO e.V., Meinhard Remberg participated in this discussion and presented his views on the topic of compliance with respect to the transparency and disclosure requirements in medium-sized companies. He quizzed as a thought-provoking question, whether compliance happens out of fear or conviction. He is clearly positioning himself by arguing that compliance is current and in the past more out of fear of sanctions and fear of losing the company's reputation. However, it should be remembered for the future that only compliance can be really good by conviction. That's what we have to work towards to achieve the conviction for compliance in the company.

4th panel: Legal certainty and reliability of internal investigations

In the last panel of the VI. Edition of the VCC featured representatives from various fields discussing the topic "Legal certainty and reliability of internal investigations". Under the direction of Dr. Harald Potinecke, who is a partner at the law firm CMS Hasche Sigle, addressed a variety of topics in the areas of compliance, labor law, data protection and criminal prosecution.

As Chief Compliance Officer at Ottobock SE & Co. KGaA, André Stein illustrated the position of those who receive and follow up information within a company. He showed how the process goes from the hint to the enlightenment and referred in his statement to the course of internal investigations. From the perspective of a company's interests, he clarified the importance of reaching an agreement in the event of a compliance violation. In his remarks regarding internal investigations, the question came up as to whether and in which case self-disclosure by the company makes sense.

Subsequently, Michael Loer referred to him as the chief public prosecutor of the Frankfurt a. M. and stressed that in each case it must be weighed individually whether it makes sense to report a suspicious situation to the appropriate authority. During the discussion, the question arose whether cooperation with a criminal authority was worthwhile. In doing so, he argued that there are initially two separate starting points: in the first case, the search warrant already exists or in the other case, it does not exist and the company comes to the criminal court. He showed the following, what is meant by a formal and material cooperation. Finally, he took position that it was difficult to establish a legal framework for internal investigations.

Prof. Dr. Lena Rudkowski extended the discussion as a junior professor at the University of Gießen to aspects of labor law. In her remarks, she referred to employers' obligation to disclose to employers about compliance breaches. In any case, it is important in all cases to observe the principles of equal treatment and to behave consistently with all employees in order not to commit any labor law violations. At the request of the moderator, whether it is legitimate to offer benefits to employees, she expresses her approval, but only in cases where benefits are offered as an incentive to cooperate. As part of the discussion on the GDPR, the question arose which of the investigations within a company should be considered admissible at all. For example, video surveillance, screening and private e-mail use at work were mentioned as keywords that have not yet been finalized.

Dr. Matthias Korte participated in the panel as a representative of the Federal Ministry of Justice and Consumer Protection and emphasized his opinion that it was not only important, but also necessary to create legal certainty on seizure and searches. A shortcoming of the German legal system is also that companies are so far only as affected and not accused. The procedural position of the company should be reconsidered. He also advocated legal requirements for internal investigations, but this should be in a general form and should not contain a catalog of measures, since the wide scope of such a regulation would make it impossible to create a uniform regulation for all companies.

End

The sixth Viadrina Compliance Congress was a success, demonstrating that there is a great need for discussion among the stakeholders involved in the compliance industry. Prof. Dr. Bartosz Makowicz, director of the Viadrina Compliance Center, took the final word and summarized the results of the VI. VCC together. On the two days of the event, much was talked about the creation of legal framework conditions for incentives, about incentives for sanctioning measures, as well as about the legal obligation to be transparent as a control element and its deficiencies in reporting accuracy. It remains to be seen which CMS standards are necessary to take into account all the issues raised and to meet the requirements of all representatives. It is a question that will be dealt with over a longer period of time. The speakers as well as the audience reported on personal and professional experiences in the individual panels, which provided a comprehensive insight into the respective subject areas and thus promoted joint discussions that also created ideas and incentives for the future. It remains to be seen to what extent the topics discussed will evolve and what results and issues will be presented in the next and at the same time VII edition of the VCC next year.

Agata Adamowicz, LL.M. und Nicole Wilczek, LL.B