Realistic advice and solid defence.

White-collar crime proceedings often differ significantly from ‘classic’ criminal proceedings. They typically involve extensive files, complex business matters and close links to non-criminal law regulations.

Special laws and non-criminal law standards
Only some of the relevant regulations are found in the Criminal Code. Numerous criminal offences and administrative offences are regulated in special laws, such as capital market, banking or insolvency law regulations. Many criminal norms function in conjunction with non-criminal obligations. Criminal liability therefore often requires that civil, commercial or public law requirements have been violated beforehand.

Special offences and groups of offenders
Many offences are special offences and only apply to certain groups of people, e.g. members of executive bodies, managers, employers or debtors. This means that the status of the offender, involvement, attribution and delimitation of responsibility are regularly core issues.

Commercial criminal cases are often time-consuming. In practice, it is not unusual for proceedings to last several years from initiation to closure. Law enforcement bodies are increasingly responding to the growing complexity by specialising, for example through the use of specialist public prosecutors.

Long proceedings also mean that early strategic decisions, consistent conduct of proceedings and controlled communication are often crucial.

Economic activity involves risks. Case law assumes that executive bodies and managers have a wide scope for business judgement.

Business judgement rule
Within this scope of judgement, even wrong decisions are not punishable, provided that the decision was made on the basis of adequate information, was in the best interests of the company and was free of conflicts of interest.
Criminal law only intervenes if the underlying duties of care are clearly violated.

Risk of wrong decisions
Not every economically disadvantageous decision is punishable by law. Criminal law risks typically arise where duties are clearly disregarded or where conflicts of interest, hidden advantages or insufficient decision-making bases play a role.

In business, legal violations often arise from working in teams. Rarely is only one person involved. This raises complex questions:

• Who was responsible for what?
• What information and control obligations existed?
• Which actions can be attributed to individual persons?
• Areas of responsibility and delegation

Responsibilities can be delegated. However, the decisive factor is whether selection, instruction and control were properly organised and whether areas of responsibility were clearly defined.

Even conduct that is permitted and standard practice in the profession can be relevant under criminal law. Anyone who knows or should recognise that their conduct is being used to commit a criminal offence may be held criminally responsible. There is no such thing as a general area of professional activity that is exempt from criminal law.