Environmental Protection and Management in Companies in Germany

The requirements for environmentally sound production and operations within a company have increased steadily over the last few years in Germany. A distinction must be made between operational and product-specific requirements. The functional requirements for a company include compliance with legally compliant wastewater discharges or compliance with legally compliant logistics, for example, in the transport of hazardous goods. Furthermore, the company must ensure compliance with lawfully compliant international disposal and licensing regulations and compliance with key consumption figures such as CO2 emissions.

The product-specific requirements concern, among other things, compliance with the consumption figures in the production of the respective product. The requirements are standardised in various ordinances, such as ordinances on reducing the increasing amount of electronic waste or regulations on reducing CO2 emissions.

Most environmental criminal law violations occur in Germany within a company’s day-to-day operations and are committed by employees. It is, therefore, questionable to what extent managing directors, board members or other management personnel can be held criminally liable for such environmental offences committed from within the company. This question of liability is highly complex and must always be answered concerning the specific individual case.

In case law, the principle of principal’s liability applies. According to this, a guarantor’s duty arises from the position of the owner of a business or as a superior, according to Section 13, paragraph 1 of the German Criminal Code (StGB). This principle serves to prevent company-related criminal offences by employees. This refers to offences that have an internal connection to the company’s activities. In the case of environmental offences, this is always the case if environmental hazards arise within the enterprise and not because of private conduct. In principle, the company management may be liable for offences committed by employees, especially if employees have acted based on instructions with environmental offences as their object.

If an environmental offence is committed within the company and it cannot be determined exactly who committed the offence, a fine can also be imposed on the company itself under the conditions of Section 30 of the German Act on Regulatory Offences (OWiG). This is independent of the sanctioning of the individual offender and can also be charged if an offender cannot be identified as a person. However, it is nevertheless certain that one of the persons covered by Section 30 OWiG committed the offence. If an offence cannot be proven, the owner of the establishment or enterprise may be charged with a breach of supervisory duty under Section 130 OWiG. A fine is also possible under this section.

Essential for the assessment of the potential liability of the managing director is the consideration of all circumstances and the investigation of the individual operational processes. This involves determining how such an error could have occurred and who is responsible.

To avoid a criminal claim, it is essential to position oneself legally so that sources of error within the company are minimised, and the company’s environmental conduct always follows the applicable law. Our legal team consists of lawyers with in-depth knowledge and extensive experience in German environmental criminal law as well as experienced criminal defence lawyers. Whether your company wants expert advice on a specific legal matter or seeks ongoing support, our firm is your reliable contact.

Establishing environmental and climate compliance for companies is essential for the above reasons. If a company lacks a mature compliance system, there is a risk of reputational damage and criminal and civil law consequences, e.g., claims for damages.

With effective environmental and climate compliance, preventive protective measures can, therefore, already be established in your company, and it can be ensured that all activities and products comply with the increasingly international and national environmental law requirements.

Our experienced lawyers will develop environmental and climate compliance systems tailored to your company and, with the help of risk analysis, identify the potential weak points within your corporate structure so that the legal risks can be significantly minimised. Schlun & Elseven looks at your company in its entirety and covers all complex organisational structures to ensure compliance with environmental law standards in every area.