Within the scope of application of the FinStrG in conjunction with the VbVG, partial leniency of up to five-sixths of the fine is possible. The restriction that a maximum of half of a fine may be remitted does not apply.

Since 01.01.2006, associations have been subject to the German Association Liability Act (VbVG) and can therefore be subject to criminal sanctions for criminal acts committed by their decision-makers and employees. The VbVG is becoming increasingly important and associations should pay attention to compliance, criminal law risk management and organizational measures to ensure compliance with association obligations.

Criminal offenses that give rise to prosecution under the VbVG are usually criminal property and financial offenses. As supreme court rulings in the area of the VbVG are still rare, there are sometimes uncertainties, including when the sanction system of the VbVG and the FinStrG coincide, as the decision of the Supreme Court of 6 November 2014 on 13 Os 56/14f shows.

In a ruling by the Vienna Regional Court for Criminal Matters as the court of lay assessors on February 20, 2014, the association was sentenced to a fine of EUR 80,000.00 for the financial offences committed by its former managing director, whereby half of this fine was conditionally suspended for a probationary period of three years. As a result of an appeal against the sanction by the defendant association (appeal for annulment pursuant to Section 281 (1) no. 11 StPO), the Supreme Court ruled that the contested decision was to be set aside in the award on the association fine, as the court of first instance had wrongly assumed the limitation contained in Section 26 (1) third sentence FinStrG when assessing the scope of the admissibility of conditional leniency to the detriment of the defendant association. Within the scope of application of the VbVG, the restriction that fines can only be conditionally remitted up to half does not apply . The association was therefore sentenced to a fine of EUR 60,000.00 following the reassessment, whereby three quarters of this fine (i.e. EUR 45,000.00) was conditionally suspended.

Pursuant to Section 7 VbVG , the VbVG not only allows for partial leniency of up to five-sixths of the fine, but also for leniency of the entire fine pursuant to Section 6 VbVG. However, the latter provision does not apply in the case of financial offenses punishable by law.

Pursuant to Section 1 (1) VbVG, the VbVG is only applicable to financial offenses to the extent provided for in the FinStrG. With regard to this reference provision, Section 28a (1) first sentence FinStrG stipulates that the first and second sections (Sections 1 to 12) of the VbVG apply to judicial financial criminal law with the proviso that the fine imposed on the association is to be calculated “in accordance with the fine threatened for the financial offense for which the association is responsible”. This expresses that the fine is not to be determined according to the daily rate system – as provided for in Section 4 VbVG – but according to the sanction system of the FinStrG.

First of all, it follows from this that in cases of criminal liability of associations, which are based on financial offenses punishable by the courts, a completely conditional reduction of the fine is not possible, because § 6 VbVG only provides for such a reduction for fines calculated according to daily rates. The Supreme Court did not follow the opinion of E. Steininger (VbVG § 6 Rz 15) that a fine imposed in accordance with the FinStrG should be fictitiously converted to a fine calculated according to the daily rate system and on the basis of this the possible exceeding of the limit standardized in § 6 para. 1 first sentence VbVG (70 daily rates) and thus the possibility of granting full conditional leniency should be examined.

Accordingly, in the specific appeal case, the limits of the admissibility of partial conditional leniency were to be assessed in accordance with Section 7 VbVG (and not Section 26 (1) FinStrG). The provisions of the first section (§§ 1 to 52) of the FinStrG are, in accordance with § 28a para. 1 second sentence FinStrG, to be applied in addition to those of the first and second sections of the VbVG (§ 28a para. 1 first sentence FinStrG), whereby the law stipulates a subsidiary application of the designated provisions (§§ 1 to 52 FinStrG). However, since § 7 VbVG expressly regulates the granting of partial leniency of the fine – without restriction to the daily rate system – the subsidiary application of § 26 para. 1 FinStrG in this area cannot be considered (contrary to Tannert, FinStrG § 28a note 15 and – remaining isolated in this respect – 13 Os 13/12d). The contested decision was therefore to be set aside in partial upholding of the appeal for annulment in the decision on the fine for association fines and reassessed (also taking into account the grounds for mitigation mentioned in § 5 VbVG).