GERMANY Law and Practice Contributed by: Rainer Wilke, Ingo Theusinger and Ralph Schilha, Noerr
• the Federal Environment Agency (UBA) or state environmental agencies in the case of violations of environmental law; • the BaFin in the event of breaches against financial laws and regulations; • the Federal Cartel Office in the event of breaches of competition law; • the BSI in the case of violations related to information security and critical infrastructure; and • the BfDI in the case of data breaches or non- compliance with data protection obligations. For internationally active companies, foreign or European enforcement authorities can also pose a risk. These can include the following: • the European Public Prosecutor’s Office – an independent and decentralised prosecution office of the EU, which has the competence to investigate and prosecute crimes against the EU budget, such as fraud, corruption or serious cross-border VAT fraud; • the EC – investigates a suspected breach of EU competition law; • the US Federal Trade Commission (FTC), which co-operates with foreign counterparts to enforce US consumer protection and pri- vacy laws; and • other foreign authorities might investigate/ enforce through administrative assistance from German authorities. 5.3 Co-Operating With Enforcement Authorities During a crisis, companies need to co-operate with enforcement and supervisory authorities – particularly on regulatory and legal matters, which may include regular reporting and (at times) appointing an external monitor to ensure compli- ance. Companies typically provide updates to
authorities, with the frequency depending on the crisis’s nature and legal requirements. 5.4 Litigation Risk Assessment German companies assess potential legal risks and liabilities through risk management frameworks, internal audits and legal compli- ance reviews. This process includes identifying regulatory obligations, evaluating contractual risks and analysing past legal issues to prevent future liabilities. Legal teams, often in collabora- tion with compliance officers and external coun- sel, conduct due diligence, monitor legislative changes and review industry-specific risks. Regulatory compliance is a key factor to be con- sidered in the assessment of potential legal risks and liabilities for companies in Germany. This includes adherence to significant regulations. Contractual obligations are another critical fac- tor. Companies must ensure that all contractual agreements are clear and enforceable to mini- mise the risk of breaches or misunderstandings. Data protection risks are also a primary focus, especially given the stringent requirements of the GDPR. Compliance with labour laws is highly relevant, as breaches of employment regulations can result in significant penalties and legal disputes. This includes maintaining fair employment prac- tices and adhering to health and safety regula- tions. Potential litigation risks are carefully analysed and re-evaluated on an ongoing basis to prepare companies for possible legal challenges and to develop appropriate risk mitigation strategies.
93
CHAMBERS.COM
Powered by FlippingBook