“Compliance and global business activities are not contradictory”

Conference of the British Chamber of Commerce at Oppenhoff & Partner brought numerous participants up-to-date on the latest Compliance issues

Compliance is more topical than ever for German enterprises. At a conference held by the British Chamber of Commerce Germany (BCCG) at Oppenhoff & Partner in Cologne the participants intensively discussed risk appraisal, the conception of Compliance programmes, and ways to implement such programmes, particularly in internationally operating enterprises. The speakers gave an overview of current developments, inter alia in the area of data protection and regarding the new standard EPS 980.
“Compliance is more than anti-corruption”
Following a welcoming speech by Dr. Hanno Goltz, member of the Board & Council of the BCCG and partner of Oppenhoff & Partner, Michael Abels outlined the economic political frame. Abels, member of the Compli-ance group of Oppenhoff & Partner, warned against an overly narrow focus: “Compliance is more than anti-corruption”. He highlighted the enormous threat potential of Compliance topics for enterprises at present, also due to increasing activities of the public prosecution authorities: “Responsibility for Compliance cannot be borne solely by the Compliance Officer; management decisions are required here.” There can be no scope for discretion in the clarification of breaches, said Abels.
Jochen Rafalzik, Group Compliance Officer at Weidmüller Holding AG & Co. KG, described the expansion into the BRIC states as a particular challenge for his enterprise’s Compliance organisation. Weidmüller is one of the world’s leading providers of solutions for electrical connections and for the transmission and conversion of energy, signals and data. Rafalzik described risk analysis, prevention through intensive training, communication and monitoring by external examiners as important building blocks of his Compliance programme. “Internal acceptance is established through self-image and the corresponding actions”, said Rafalzik: “We even refer transaction-relevant topics back to the management of the enterprise.”
“Compliance of the Compliance”
The relevance of data protection within Compliance programmes was described by Dr. Jürgen Hartung, partner and data protection expert of Oppenhoff & Partner. According to Hartung, the legislator has created many uncertainties through its vague wording, and the current drafts of the employee data protection act promise no improvement. The provisions are important, especially for systems which enable employees and external persons to notify any suspicious observations (so-called whistle-blowing), as well as for the possibility of monitoring the e-mail traffic of employees in specific cases. “Personal data should be minimised”, is the expert’s recommendation, “within corporate groups, the roles, services, rights and obligations should be agreed in writing between the individual companies.”
The risk appraisal procedure, which should be at the outset of a Compliance programme, was described by Oppenhoff partner Dr. Marc Hilber. He distinguished between the gross risk, for example that employees in distribution act in an unlawful manner, and the net risk that remains after the implementation of appropriate measures. According to Hilber, further factors to be taken into consideration in this connection are financial risks and the risk of a loss of reputation, but also and especially the degree of unlawfulness of the illegal actions. Hilber recommended setting priorities on the basis of the risk appraisal: “It is not possible to address every area with potential problems with the same degree of intensity”.
“Reduce complexity”
Dr. Christian Wagemann of the Corporate Functions Compliance department of Deutsche Bank AG described their Compliance programme. Consistency, continuity and keeping up-to-date are the cornerstones. A particular challenge over the past few years had been the implementation of countless regulatory amendments to the financial market legislation. Wagemann recommended establishing an awareness of and setting examples for good Compliance and arousing a community spirit: “Our experience shows that we can achieve good solutions for advice and risk management if we reduce complexity and present practical solutions”.
Heinz Wustmann of Deloitte & Touche presented the new Compliance standard EPS 980 of the Institute of Public Auditors in Germany (Institut der Wirtschaftsprüfer, “IDW”). Wustmann, a member of the working group that developed the standard, said that the certification examined target and situation-oriented concepts as well as the implementation and effectiveness of Compliance programmes. It was important to prepare well for the examination, inter alia as far as the choice of examiner is concerned. “For an enterprise, the certifica-tion can specifically mean the reduction of liability risks or savings in the D&O insurance. Ultimately, the examination assists the sensible further development of the Compliance programme.”
Finally, the conference speakers and participants, representatives of medium-sized enterprises and large groups, discussed in particular the question of how Compliance programmes can be integrated into corporate reality and reconciled with the corporate goal of generating profit. In response to a question raised by the presenter Dieter Fockenbrock, chief correspondent of the Handelsblatt, the speakers stressed that it is also possible for globally operative enterprises to act in line with the law worldwide. In some cases this might indeed mean abstaining from concluding a lucrative contract.

Oppenhoff & Partner is an independent law firm with a tradition of over 100 years of legal counselling. From its Cologne base, around 55 lawyers advise national and international companies and entrepreneurs on matters of commercial and tax law.