For years now, white collar investigations and enforcement actions have been gaining importance for corporations and individuals. Hardly a year goes by without headlines about the criminal investigation of corporate misconduct: Allegations of bribery and corruption, so-called “Cum/Ex” transactions in the financial sector or allegations of manipulation of diesel vehicles, to name just a few particularly relevant examples. In the practice of criminal defense, it is particularly noticeable that the pressure to prosecute, the professional expertise and the investigative powers as well as the international coordination among the investigating authorities and the amount of the fines and penalties ultimately imposed are constantly increasing. In the white collar domain in particular, the internationalization of investigation proceedings has progressed significantly, for example by introducing the European Public Prosecutor´s Office, the implementation of legal mechanisms to gather evidence in other EU member states (European Investigation Order), the formation of joint investigation teams as well as the increasing importance of Eurojust (not only regarding EncroChat-cases) and Interpol, which have to be taken into consideration when defending in EU cross-border proceedings.
The above examples also show that the (legally undefined) concept of “white collar” is not exhaustive in content, but can affect all areas of law in the context of entrepreneurial activity. In addition, the legislator continuously adds new duties & obligations, the violation of which are often either criminalized or at least penalized by an administrative fine.
The “classic” offenses in the context of white collar crime are usually bribery (including violations of the U.S. FCPA), money laundering (especially since the German legislator has abandoned the restrictive list of potential offenses qualifying for subsequent money laundering, in favor of a new “all crimes” approach), embezzlement, fraud, offenses against the environment, tax evasion / fraud, antitrust violations, bankruptcy & insolvency offenses. In addition, capital market offenses such as insider trading, accounting fraud, violations of the German Products Safety Act, Data Privacy violations as well as sanctions-related offenses can be named here as well. Especially the investigations of violations of sanctions increased significantly since the introduction of sanctions against Russia in 2014.
In addition, the Whistleblower Protection Act (Hinweisgeberschutzgesetz), the Act on Corporate Due Diligence Obligations in Supply Chains (Lieferkettensorgfaltspflichtengesetz) as well as various complex legal requirements regarding sustainability / ESG criteria need to be mentioned here as well since the violation of the aforementioned statutes can lead to serious fines or even criminal liability (for example in cases of investment fraud by so-called “Greenwashing”).
Anyone can be affected by a criminal investigation in the course of their professional career. Irrespective of the outcome, the mere initiation of such proceedings can have far-reaching consequences, despite the validity of the presumption of innocence.
Investigations of individual employees often have serious consequences for their employer as well, such as, for example, searches of company premises extensively covered in the media, resulting in considerable disruption of business processes, reputational damages and – especially in cases of corporations listed on the stock exchange – loss in value. Furthermore, there is often the (de facto) compulsion to carry out lengthy and costly internal investigations and subsequently to cooperate with the investigating authorities. The ensuing prosecutorial investigation can then result in high corporate fines, including a confiscation of profits, as well as the exclusion from public tenders and an entry in the Central Trade Register.
In such situations as described above, the early involvement of criminal defense counsel with relevant experience is essential. Especially in white collar matters, the course for the later process and outcome of the proceedings is often set already during the preliminary investigation stages. Once decisions have been made, they can often no longer be reversed – especially not in public trial, when the reputational damage has already been done. If competent defense counsel is involved at an early stage, however, solutions can often be worked out at an early stage of the process, which in particular avoid the need for a public trial and can considerably reduce the duration of the overall proceedings.