The Frankfurt am Main Regional Court – 30.04.2025 (Ref. 5/2 KLs 11/18 – 7550 s 242375) imposed an association fine of a total of 110,000 euros on the DFB in its judgment on the “Summer Fairytale Trial” pursuant to § 30 IV OWiG.
An association fine against an organization is, as the judge emphasized in the pronouncement of the judgment, rather rare in German criminal or fine proceedings.
The Federal Government’s planned draft law on the sanctioning of association-related criminal offenses (Verbandssanktionengesetz) of August 7, 2020 (BR-Drs. 440/20) was delayed in the legislative process and was no longer adopted before the federal election in autumn 2021 and was then not reintroduced in the next legislative period.
But there is the possibility of setting a fine according to § 30 IV OWiG. § 30 enables the imposition of a fine against legal entities or associations of persons, provided that their representatives (bodies, executive boards, representatives, other managers) have committed a criminal offense or administrative offense, through which either obligations of the association have been violated or which have led or should lead to its enrichment.
The procedure according to § 30 IV OWiG requires that a connecting act exists, that is, either a criminal offense or an administrative offense that was discontinued, for example, for reasons of expediency according to § 47 OWiG. That is, there must be an act that was committed culpably or reprehensibly. Especially if the proceedings against the managers were discontinued early, due to presumed minor fault according to § 153 StPO, the association fine would be possible from the systematics. In fact, however, the connecting act must then also be determined.
In this procedure, managing bodies have already been convicted of tax evasion, so there was clearly the starting point of the existing criminal offense or were discontinued against payment of money according to § 153a StPO.
However, the connecting act must also be demonstrably present; there is room for defense here if an association fine is contemplated.
Frequently, a violation of supervisory duties pursuant to § 130 OWiG comes into consideration. However, if the business or company owner has fulfilled the legally prescribed organizational and supervisory duties, i.e. has taken and implemented precisely those measures within the framework of a compliance program that are necessary to fulfill the legally prescribed organizational and supervisory duties, liability pursuant to § 130 OWiG is ruled out. This is because a compliance system that meets the operational requirements is to be regarded as a necessary supervisory measure within the meaning of § 130 para. 1 OWiG. Compliance is therefore a direct outflow of the program of obligations required by § 130 OWiG, because compliance is intended to ensure lawful conduct on the part of the company’s employees. Efficient compliance thus leads to a complete discharge (at the level of the elements of the offense) in this constellation. There is then no administrative offense within the meaning of § 130 OWiG. According to the principles set out above, there is then also no connecting act within the meaning of § 30 OWiG.
In addition, § 30 IV OWiG provides for a necessity of fining, the sanctioning must regularly be specially justified. In particular, the prosecuting authority must explain in detail why a fine against the legal entity or association of persons is indispensable even despite the discontinuation of proceedings.
The judge saw this necessity of sanctioning in the “Summer Fairytale Trial” and justified it. One may be curious about the reasons given in detail.
If you are affected by a fine as a managing body or against your association under § 30 IV OWiG, please do not hesitate to contact us. We question for you whether there is even a culpable or reprehensible act within the meaning of § 30 OWiG or only a simple work error.
