WHITE-COLLAR DOLOR SIT AMET - Expertise & Experience
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Expertise & Experience
WHITE-COLLAR
LOREM IPSUM
CRIMINAL
DOLOR SITLAW
AMET
0
“A FIRM ESTEEMED FOR
WHITE-COLLAR CRIMINAL LAW
FURTHER INTENSIFIES ITS
COMPLIANCE WORK.”
JUVE 2014
Light: We perform a precise analysis and examine every conceivable aspect in detail. We identify contexts,
interrelationships and activities early on and shed light on complex issues. This enables us to react in good
time and avoid liability.
1
WHEN PUSH COMES
TO SHOVE ...
WE ARE BY YOUR SIDE
When companies come into contact with white- White-collar criminal law aspects should never be
collar criminal law, it often happens unexpected- considered in isolation; they are often closely re-
ly. However, this should not mean that you are lated to other fields of law. White-collar criminal
unprepared. Your company can be affected by law charges, for example, can have tax law con-
criminal investigations at any time, regardless of sequences, trigger employment or civil law claims
whether these are directed at corporate bodies, from customers, business partners or third par-
employees or third parties. ties, or – conversely – substantiate a company’s
claims for damages.
In addition, criminal or administrative regulations
can in many areas considerably impact the organ-
isation and implementation of business decisions.
White-collar criminal law issues must therefore
be taken into consideration in the early stages of
all business activities. This helps prevention, en-
sures compliance and is essential to avoid liabil-
ity.
Ignoring white-collar criminal law issues is a dan-
gerous attitude. The on-going commercial suc-
cess of a company depends not only on proactive
entrepreneurial decisions, but also on avoiding
violations of applicable law, or even the impres-
sion of such. It is not only possible legal sanctions
that may jeopardise the existence of a company;
any damage to a company’s image can have se-
vere economic consequences. The fact that inves-
tigative proceedings have even been initiated can
have an undesirable impact in terms of capital
markets or public procurement law.
2
OUR SERVICES
We have made it our business to ensure that you and your company are optimally and comprehen-
sively prepared for the worst and to support you at every stage along the way. We advise on all situa-
tions in which you may be confronted with white-collar criminal law issues.
In particular, we advise on the following: assessment of investigation results, in particu-
lar from a company, employment and criminal
preventative advice and drafting of expert
law point of view
opinions on all white-collar criminal law and
tax criminal law issues development of amnesty programmes
representation of undertakings during search- coordination of internal and external commu-
es and confiscation measures nication concepts, in particular with respect to
media and capital markets
defence of undertakings in criminal investiga-
tions and administrative offence proceedings
defence of executive boards members, super-
visory board members and decision-makers in
investigative and criminal proceedings
planning and structuring of national and inter-
national internal investigations (investigation
maps)
use of tried and tested analysis tools, including
Noerr’s own e-discovery infrastructure
securing evidence in a form which can be used
in court
execution of internal investigations, both as an
independent investigator and to support the
units in an undertaking charged with clarifying
suspected violations and infringements
3
4
PREVENTION &
COMPLIANCE
Any conflict with criminal regulations can nearly Irrespective of where in the world your company
always be prevented by carefully reasoned cor- operates, structures and processes always have
porate organisation and well-thought-out action, to be in place that comply with applicable laws
from the business model as a whole to individual and regulations.
entrepreneurial decisions. Many structures can
We can support you with respect to:
be implemented in advance so that criminal or
administrative law risks are completely avoided the structuring and implementation of compli-
or reduced to an absolute minimum. ance management systems
In particular, Noerr can support you by: the organisation and establishment of a com-
pliance organisation
identifying the relevant criminal, administra-
tive fine or other regulations relating to penal- the drafting of compliance policies and work
ties instructions
carrying out a criminal law risk analysis the establishment of whistleblower systems
comprehensively assessing specific issues handling suspected cases
making well-founded structural and organisa- carrying out internal investigations, compli-
tional recommendations for your projects ance investigations and compliance audits
You can therefore make business decisions on a the regulation of other compliance issues
sound basis, avoiding bad decision due to lack of dealing with domestic and foreign investigat-
knowledge or misjudgement, which can be both ing or supervisory authorities
dangerous and costly.
5
CRIMINAL
INVESTIGATIONS
Only to a certain extent companies can prevent dealing with investigating authorities can be very
themselves or their employees from becoming expensive. Companies should ensure that proac-
involved in criminal investigations. In critical situ- tive precautionary measures are in place with re-
ations, investigating authorities have a broad spect to the correct behaviour in such situations.
spectrum of judicial measures available to them.
We provide you with support to:
Companies can therefore be specifically impacted
by investigations in many different ways, often establish an emergency plan
indirectly and seriously. draft instructions regarding correct conduct in
investigation and search situations
Irrespective of whether proceedings are directed
against a company, its managers or employees or train your employees
against external third parties, the instruments deal with searches and confiscations
available to investigating authorities range from
the obligation of companies to provide infor- represent your interests during investigative
mation and present documents, to access and in- measures
spection rights, searching, securing and confiscat- deal with investigating and judicial authorities
ing documents, records or other objects in
physical or electronic form and the freezing the required crisis communications
(seizure) of assets. All our German offices have “Dawn Raid Teams”,
comprising experienced lawyers who can support
Proactive crisis management is therefore neces- you promptly and on site with respect to search-
sary to protect your company against inappropri- es or other dawn raids by the investigating au-
ate intervention or the serious impact of investi- thorities.
gative measures. Misconduct and ineptitude in
6
INTERNAL
INVESTIGATIONS
If the possibilities of criminal law or administra- This is the only way to guarantee that the find-
tive fine regulation infringements, serious viola- ings obtain constitute evidence usable in court
tions of the law, wrongdoing or breaches of obli- and that the internal investigation itself does not
gations are suspected, it is in the fundamental become a compliance risk.
interest of the company to clarify these circum-
Having an internal investigation carried out by
stances. The interests and rights of the company
our lawyers has the advantage that the results of
must be secured and, if necessary, asserted. In
the investigation and the documents relating to it
particular, this requires identifying whether or
enjoy special protection due to attorney-client
not the company has suffered any damage and
privilege. You therefore have control over the de-
against whom claims for damages may, if appli-
cision whether, and if so, to what extent to dis-
cable, exist.
close the investigation findings to the authorities.
With an internal investigation in such cases, the
The structuring and preparation of internal inves-
clarification of circumstances must be conducted
tigations – particularly if the investigations also
in a structured and systematic manner. As well as
take place abroad – require an intensive review
identifying the facts, at the same time a basis for
of preliminary questions including data protec-
the optimisation and improvement of internal
tion, employment and co-determination, civil and
processes and control mechanisms must be cre-
criminal law. The results of an internal investiga-
ated.
tion often also raise issues relating to public pro-
The careful preparation and execution of internal curement, tax, accounting and capital markets
investigations is therefore essential. This applies law. As a multi- and interdisciplinary law firm
both to the establishment of the objectives and with specialists in all relevant legal disciplines, we
scope of the internal investigation and the selec- offer “one-stop” advice and support for internal
tion of investigation methods and analysis tools. investigations.
7
We can support you in connection with:
planning and structuring the internal inves- assessment and the best possible use of in-
tigation, including data protection, works vestigation results, in particular from a
constitution and employment law compli- criminal, civil, employment and company
ance with the planned investigative law perspective
measures
representing your interests with respect to
carrying out the internal investigation, as an investigating and supervisory authorities
independent investigator, or as support for
developing tailor-made amnesty pro-
the units in your company responsible for
grammes to ensure the required coopera-
clarifying any suspected violations or in-
tion of knowledge holders
fringements
communication with customers, employees,
securing evidence in a form which can be
shareholders, business partners and the
used in court
public
8CRIMINAL TAX LAW
Because of constant changes and amendments in tation periods for criminal liability also consider-
response to current developments, tax law regu- ably increase the risk of criminal prosecution.
lations and their interplay have become so com-
plex that it is often very difficult for taxpayers to If there is a risk of being accused of a criminal tax
keep track of the rights, obligations and permis- offence, the most important thing is to react cor-
sible tax models concerned and their impact on rectly and calmly. In many areas there is certainly
other taxes. the possibility to avoid prosecution by submitting
a subsequent tax return or by the correction of
Carelessness with respect to tax models or tax tax returns.
assessment can entail enormous risks. A discus-
We provide you with experienced support:
sion during a field tax audit can lead to unpre-
dictable risks. National or international disclo- for the preparation and supervision of field tax
sures to tax authorities or even higher taxable audits
earnings established during a field audit can trig- with respect to subsequent tax returns
ger criminal investigations.
relating to voluntary self-reporting of tax eva-
At the same time, the requirements placed on sion, also in complex situations (involving a
the assumption of indirectly intentional conduct large number of persons or if different types of
are so low that the risk of prosecution due to domestic and foreign taxes are concerned)
committing a tax offence nearly always exists. by defending you in criminal tax law investiga-
Case law which states that suspended prison sen- tion proceedings
tences for tax evasion of more than one million
euro can only be imposed in exceptional circum- to represent you with respect to factual
stances, makes the potential risk for everyone re- agreements with tax authorities
sponsible for taxes and customs duties very clear. by representing you in appeal and fiscal court
proceedings
Limited possibilities for the voluntary disclosure
of tax evasion and the extension of statutory limi-
910
DEFENDING
COMPANIES
VERTEIDIGUNG DES
If a company becomes the focus of investigative Impact on other business processes
measures, appropriate and reliable strategies
A close eye should also always be kept on the
need to be developed quickly, for defence against
possible impact of investigative proceedings on
UNTERNEHMENS
the accusations made, and conduct in dealings
with investigating authorities. Even minor in-
those business processes that are not directly in-
volved. This applies in particular to “corporate
fringements of criminal, administrative fine or
governance” – i.e. compliance with regulatory
other judicial regulations can have serious conse-
requirements, tax and accounting law, in public
quences; for example imposing of a fine on the
procurement proceedings and (export) financing.
company, “skimming-off” profits, declaring reve-
Issues relating to insurance law, collective and
nues forfeited or confiscated without the deduc-
individual employment law or civil law also often
tion of expenses or the seizure of assets. This
have to be taken into account. With our multidis-
may take place during investigative proceedings,
ciplinary structure, we cover all of these aspects
not just after a final conviction.
with rapid and efficient interaction between the
Investigative measures may be triggered by the relevant departments of our firm and can advise
suspicion of a criminal offence by corporate bod- you comprehensively on risks and reaction op-
ies, managers or employees, (unjustified) accusa- tions.
tions by third parties or by the fact that evidence
Corporate bodies, managers and employees
significant for investigative proceedings is sus-
pected to exist at the company. As well as the company itself, its corporate bod-
ies, executive or supervisory boards, other man-
A proactive response and rapid action ensure
agers or employees may be affected by investiga-
that structures decisive for such a situation are
tive proceedings, either as the persons or party
correctly in place so that you do not give up the
accused of committing an offence or as witness-
opportunity of influencing how the investigative
es. Employment law and company policy often
proceedings are carried out and concluded.
dictate that the company has to provide the per-
sons concerned with assistance and support. It is
often essential that individual investigative pro-
ceedings are coordinated by the company’s law-
yers. We ensure that witnesses are supported by
accompanying them when they are questioned.
11 providing defence against possible sanctions
If desired, and if possible, we assume the struc-
and incidental consequences
turing of collaborative defence and the coordina-
tion of the individual defences of managers or establishing a collaborative defence and coor-
employees accused of offences. dinating and managing the individual defences
of staff affected
Cross-border cases
providing legal support for managers and em-
Cases across several jurisdictions are quite com-
ployees who are questioned as witnesses
mon and can be a challenge for the defence situ-
ation. The impact that investigative proceedings managing proceedings in various legal disci-
in one country and defence against them in an- plines and/or jurisdictions
other country can have must always be consid-
developing damage limitation strategies and
ered. It is particularly important to avoid parallel
measures
domestic and foreign investigative proceedings. If
this is not possible, these should be coordinated selecting and coordinating the best advisors in
and managed optimally on the basis of a global each case for all relevant jurisdictions (on the
defence strategy. basis of our excellent international network)
We can protect you and your company during providing support with crisis communication
investigative proceedings by: and handling of shareholders, employees, cus-
tomers and business partners
developing and implementing a (national and
international) defence strategy
representing you or your company before au-
thorities and other bodies
12DEFENDING
INDIVIDUALS
Within the scope of business activities there is With respect to all white-collar criminal law
always the risk that individuals may become the and criminal tax law issues, in particular we
focus of investigative proceedings, as a party ac- can represent you in relation to accusations
cused of committing an (alleged) criminal of- in the following areas:
fence, or even simply because of their prominent
corruption and bribery offences
position in the company. This particularly applies
to directors and CEOs, due to their comprehen- fraud and embezzlement
sive organisational and supervisory duties. Mem- capital market and stock market offences
bers of supervisory boards, however, also fre-
quently become the focus of investigation infringements of foreign trade and export con-
authorities. trol regulations
We protect the individual interests of tax and customs offences
CEOs/directors, supervisory board members and accounting and balance sheet offences
senior officers, as well as “private clients” in in-
vestigative and criminal proceedings and defend insolvency and corporate crisis
them in investigative and administrative offence employment, immigration/residency and so-
proceedings before the police, public prosecu- cial security law offences
tors, tax and customs investigation services, as
IT and data protection
well as other investigation authorities and also in
court criminal proceedings. criminal construction law
criminal product liability
environmental criminal law
criminal competition law
criminal media and copyright law
13THE COMPANY
AS DAMAGED PARTY
Despite careful preventative measures, no com- We support you in this context in respect to:
pany is completely immune to suffering financial
clarifying the situation and circumstances
damage due to the illegal action of managers,
employees or business partners, whether due to securing evidence in a form usable in court
fraud, misappropriation, embezzlement, or dis- identifying, securing and recovering assets in
closure of business and trade secrets. Germany and abroad
If this has happened, the damage must be active- asserting claims for damages in civil and crimi-
ly limited. This includes the complete clarification nal proceedings
of the circumstances surrounding the case, secur-
ing evidence and obtaining restitution by identi- dealing with employees, customers and media
fying and asserting liability claims and claims for dealing with investigation authorities and
damages. other offices/agencies
In cases of fraud, embezzlement or misappropria- optimising controls and preventative protec-
tion, tracing cash flows and – in some cases – the tion measures
cross-border recovery of misappropriated assets
are of considerable significance.
14ABOUT NOERR
Noerr is one of the top European law firms with International network
more than 500 professionals in Germany, Europe
The firm guarantees top-level international legal
and the USA. The firm delivers real value to cli-
advice with its own offices in eleven jurisdictions
ents by devising and handling the right solutions
and a network of top-ranked “best friends” law
to complex and sophisticated legal matters. The
firms all over the world. Noerr is also the exclu-
Noerr difference is its unique combination of le-
sive member firm in Germany for Lex Mundi, the
gal excellence, creative thinking, international
leading network of independent law firms with
experience and in-depth industry knowledge.
in-depth experience in 100+ countries worldwide.
Listed groups and multinational companies, large
Capacity in Central and Eastern Europe
and medium-sized family businesses as well as fi-
nancial institutions and international investors re- Noerr is present with its own offices in all major
ly on Noerr. capitals in Central and Eastern Europe. As one of
the first Western law firms to open offices in the
Interdisciplinary solutions
region, the firm has continuously built on this
Together with its tax advisors, auditors and man- lead and regularly advises on greenfield invest-
agement consultants, the firm also develops sus- ments, joint ventures, acquisitions and divest-
tainable solutions for finance and management ments in Central and Eastern Europe by investors
by devising integrated solutions tailored to the from all over the world. With 100 professionals,
specific requirements of its clients. This interdis- Noerr is one of the top law firms in the region.
ciplinary approach offers clients seamless, effi-
Our offices
cient and comprehensive solutions.
Alicante, Berlin, Bratislava, Brussels, Bucharest,
Industry know-how
Budapest, Dresden, Düsseldorf, Frankfurt, Lon-
don, Moscow, Munich, New York, Prague, War-
The professionals at Noerr understand their cli-
saw
ents’ business: besides their excellent profes-
sional knowledge, the experts also have extensive Noerr Group
experience in the industries they advise. Sector
Noerr LLP – Noerr Consulting AG – TEAM Treu-
groups range from automotive, energy, banking,
hand GmbH – NOERR AG-
finance and insurance, to healthcare, real estate
Wirtschaftsprüfungsgesellschaft Steuerbera-
and retail.
tungsgesellschaft
www.noerr.com
15AWARDED LEGAL ADVICE
Law Firm of the Year: Law Firm of the Year International Firm of the
Germany Law Firm of the Year Year 2014
for M&A
The Lawyer European Legal Business Awards
Awards 2015 JUVE Awards 2014 2014
European Law Firm Client Service Firm of the Year for
of the Year Law Firm of the Year Banking & Finance,
Restructuring/Corporate
Rescue and Distribution
and Franchising
The Lawyer European Chambers Europe Awards
Awards 2012 2012 – 2010 JUVE Awards 2012
16CONTACTS
Dr Christian Pelz
Rechtsanwalt, specialist lawyer for criminal law
and tax law
Partner
Criminal law lecturer at the University of Augs-
burg
T +49 89 28628179
christian.pelz@noerr.com
Noerr LLP
Brienner Straße 28
80333 Munich
Germany
Dr Lars Kutzner
Rechtsanwalt
Partner
T +49 69 971477252
lars.kutzner@noerr.com
Noerr LLP
Börsenstraße 1
60313 Frankfurt am Main
Germany
17OFFICES
Alicante Dresden Moscow
Noerr Alicante IP, S.L. Noerr LLP Noerr OOO
Avenida México 20 Paul-Schwarze-Straße 2 1-ya Brestskaya ul. 29
03008 Alicante 01097 Dresden P.O.B. 247, 125047 Moscow
Spain Germany Russian Federation
T +34 96 5980480 T +49 351 816600 T +7 495 7995696
Berlin Düsseldorf Munich
Noerr LLP Noerr LLP Noerr LLP
Charlottenstraße 57 Speditionstraße 1 Brienner Straße 28
10117 Berlin 40221 Düsseldorf 80333 Munich
Germany Germany Germany
T +49 30 20942000 T +49 211 499860 T +49 89 286280
Bratislava Frankfurt am Main New York
Noerr s.r.o. Noerr LLP Noerr LLP
AC Diplomat Börsenstraße 1 Representative Office
Palisády 29/A 60313 Frankfurt am Main 885 Third Avenue, Suite 2610
811 06 Bratislava Germany New York, NY 10022
Slovak Republic T +49 69 9714770 USA
T +421 2 59101010 T +1 212 4331396
Kiev
Brussels Cooperation Partner: Prague
Noerr LLP TOV Nobles Noerr s. r. o.
Boulevard du Régent Vul. Khreschatyk, 7/11 Na Poříčí 1079/3a
1000 Brussels 01001 Kiev 110 00 Prague 1
Belgium Ukraine Czech Republic
T +32 2 2745570 T +380 44 4953080 T +420 233112111
Bucharest London Warsaw
S.P.R.L. Menzer & Bachmann - Noerr Noerr LLP Noerr Sp. z o.o. Spiering Sp. k.
Str. General Constantin Tower 42 Al. Armii Ludowej 26
Budişteanu nr. 28 C, Sector 1 25 Old Broad Street 00-609 Warsaw
010775 Bucharest London EC2N 1HQ Poland
Romania Großbritannien T +48 22 5793060
T +40 21 3125888 T +44 20 75624330
Budapest
Noerr & Partners Law Office
Fő utca 14-18
1011 Budapest
Hungary
T +36 1 2240900 www.noerr.com
18ALICANTE
BERLIN
BRATISLAVA
BRUSSELS
BUCHAREST
BUDAPEST
DRESDEN
DÜSSELDORF
FRANKFURT/M.
LONDON
MOSCOW
MUNICH
NEW YORK
PRAGUE
WARSAW
NOERR.COM
19You can also read
