Workplace Accident Investigation: Criminal Defense for Managing Directors in Germany

The criminal liability of a managing director following a workplace accident is grounded primarily in negligence offenses under German criminal law. Where an employee dies as a result of the accident, the charge of negligent homicide under Section 222 StGB may be brought. The offense carries a maximum sentence of five years’ imprisonment. Where the employee sustains injuries without dying, Section 229 StGB governs; it carries a maximum sentence of three years’ imprisonment or a fine.

Section 229 StGB is an offense that can only be prosecuted upon a formal complaint (Strafantrag) by the injured party. However, the public prosecutor’s office may also proceed without a complaint where there is a particular public interest in prosecution, which is regularly assumed in cases of serious workplace accidents (Section 230 para. 1 sentence 1 StGB).

In addition, Section 26 of the German Occupational Health and Safety Act (ArbSchG) provides for imprisonment of up to one year or a fine where a person persistently repeats a regulatory violation under Section 25 para. 1 ArbSchG, or where an intentional violation creates a specific danger to the life or health of an employee. Section 26 ArbSchG therefore generally applies only where there is a prior regulatory history, for example, a prior order under Section 22 para. 3 ArbSchG that the person concerned has continued to disregard. In the case of a first-time workplace accident with no prior regulatory intervention, the central criminal provisions are therefore Sections 222 and 229 StGB.

Understanding which route criminal liability takes is central to building an effective defense. Criminal liability under Sections 222 and 229 StGB can attach to the managing director in two different ways.

The first is active conduct: the managing director’s own faulty decisions. Those who direct unsafe working practices, deploy defective equipment, or prevent protective measures from being taken commit the offense through their own direct actions.

More common in practice, however, is the second route: liability through omission. Under Section 13 StGB, a person who fails to avert a prohibited outcome is criminally liable where they are under a legal duty to ensure that the outcome does not occur. This so-called “Garantenstellung” (guarantor position) of the managing director derives from their role as the company’s legal representative under Section 13 para. 1 No. 1 ArbSchG. This provision imposes employer obligations under the ArbSchG directly on the managing director, the legal representative of a corporate entity. The result is a duty to protect the physical integrity of all employees.

The practical consequences are significant. A managing director who has failed to conduct a proper risk assessment under Section 5 ArbSchG, omitted mandatory safety training under Section 12 ArbSchG, or failed to prevent the use of technically unsafe equipment may face liability under Sections 222 or 229 StGB in conjunction with Section 13 StGB, even where they were not present on the day of the accident.

After a serious workplace accident, investigations typically begin on several levels simultaneously. The police secure the accident scene and take initial witness statements. In parallel, the employer is required under Section 193 SGB VII to report workplace accidents resulting in more than three days of incapacity for work, as well as fatal accidents, to the competent Berufsgenossenschaft without delay. The Berufsgenossenschaft conducts its own independent accident investigation and may pass its findings to the public prosecutor’s office. The trade supervisory authority or the competent occupational health and safety authority may also refer the matter for prosecution.

The public prosecutor’s office typically opens an investigation against the managing director or directors, who are the legal representatives of the GmbH. Once proceedings are formally initiated, the person concerned becomes a formal suspect (Beschuldigter). At this stage, searches of business premises and the seizure of documents such as risk assessments, training records, maintenance logs, and operating instructions are not uncommon.

As a suspect, the right to remain silent applies in full. There is no obligation to make any statement to either the police or the public prosecutor’s office. Premature disclosures made without legal preparation can seriously harm your position in the proceedings.

Delegation is one of the most frequently raised arguments in defense of managing directors, but its scope is strictly limited under German law. Under Section 13 para. 2 ArbSchG, an employer may, in writing, appoint reliable and competent persons to assume responsibility for tasks otherwise incumbent on the employer under the ArbSchG. An effective delegation can reduce the managing director’s personal criminal liability for the delegated area of responsibility.

However, that relief is not without limits. Residual responsibility remains with the managing director even after delegation has taken place. They must be able to demonstrate that they carefully selected the appointed person (Auswahlverschulden: fault in selection), provided sufficient instruction, and regularly monitored performance of their duties (Überwachungsverschulden: fault in supervision). A formal delegation document offers no protection where the appointee was demonstrably out of their depth or where the delegation existed on paper but not in day-to-day practice.

In a multi-managing-director structure with allocated portfolios, the same principle applies: a managing director who is not responsible for operational matters may still face liability if they knew, or ought to have known, of obvious deficiencies.

Not every criminal investigation following a workplace accident results in an indictment, and early intervention by defense counsel significantly affects the outcome. In cases of negligent bodily harm under Section 229 StGB, proceedings may in principle be discontinued under Section 153 StPO where the suspect’s culpability is considered minor, and there is no public interest in prosecution. In practice, this is a realistic option in workplace accident cases only when injuries are minor and the victim bears a clear degree of contributory fault.

More common is discontinuation under Section 153a StPO, subject to conditions, typically payment of a financial penalty, community service, or compliance with another condition imposed by the court or prosecutor. This instrument offers the significant advantage that no finding of guilt is recorded, and proceedings are concluded without a full trial.

Where the charge is negligent homicide under Section 222 StGB, the threshold for discontinuation is considerably higher. Section 153 StPO is generally unavailable in this context. Discontinuation under Section 153a StPO is possible in principle, but in practice involves substantial financial penalties. Whether the public prosecutor’s office will agree, and on what terms, depends significantly on how the suspect’s culpability and the specific circumstances of the accident are presented and argued. This is work that must be placed in the hands of defense counsel at an early stage.

Criminal liability and regulatory sanctions are distinct but often run in parallel, and a statement made in one set of proceedings can affect the other. Section 25 ArbSchG covers two categories of violation: breaches of statutory instruments under Sections 18 and 19 ArbSchG, most notably the Industrial Safety and Health Ordinance (Betriebssicherheitsverordnung, BetrSichV), insofar as it refers to Section 25 for a specific offense, and contraventions of enforceable orders issued by authorities under Section 22 para. 3 ArbSchG. Employers and responsible persons who intentionally or negligently contravene such an order face a fine of up to €30,000 under Section 25 para. 2 ArbSchG.

Regulatory offense proceedings and criminal proceedings may run in parallel. Any statement made in the context of a regulatory offense procedure may be admissible in the criminal proceedings. For this reason, a coordinated defense strategy is equally essential across both tracks.

Criminal proceedings can have a direct bearing on liability in other areas of German law. Under social insurance law, the liability privilege set out in Sections 104 and 105 SGB VII provides that an injured employee generally has no civil law claim against the employer for damages or compensation for pain and suffering where the Berufsgenossenschaft covers the loss. This privilege, however, is lost where the accident was caused intentionally.

In addition, the Berufsgenossenschaft may bring recourse claims against the employer under Section 110 SGB VII where the accident was caused by gross negligence. The recourse claim is capped at the injured party’s annual earnings.

Personal liability of the managing director toward the injured party under Section 823 para. 1 BGB may arise where a direct and culpable interference with a protected legal interest can be established. The line between such personal liability and the company’s own corporate liability is fact-specific and has not been resolved uniformly in the case law.

The first hours and days after a serious workplace accident are critical. Managing directors should bear the following in mind:

• Do not make any substantive statements to the police or public prosecutor’s office before the legal position has been discussed with a criminal defense lawyer. The right to remain silent protects against premature self-incrimination.
• Secure and document the accident scene to the extent legally permissible, without acting in contravention of any official order.
• Preserve relevant documentation, including in particular risk assessments, training records, maintenance and inspection logs, and delegation agreements. Destroying or altering evidence may itself constitute a separate criminal offense.
• Comply with the reporting obligations under Section 193 SGB VII within the required timeframe, without voluntarily disclosing information that could be used against you.
• Seek legal advice at an early stage, ideally before the first summons or notification arrives.