1 The bribe payments and other facts leading to the allegations and proceedings against Siemens are referred to hereinafter as the “Siemens case”. Reference to “Siemens” means Siemens AG together with its subsidiaries.Google Scholar

2 See Press Release, Dept. of Justice, Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act Violations and Agree to Pay $450 Million in Combined Criminal Fines (Dec. 15, 2008), available at http://www.usdoj.gov/criminal/pr/press_releases/2008/12/12-15-08siemans-guilty.pdf (discussing the U.S. Department of Justice (DOJ) terming the Siemens case as “unprecedented in scale and geographic scope”).Google Scholar

3 See Blomberg, Peter von, Siemens Gnadenlos, Die Welt Online, Jan. 6, 2009, http://www.welt.de/die-welt/article1854420/Siemens_gnadenlos.html. (explaining “a new era” and a “revolution” that the Siemens scandal has opened).Google Scholar

4 In the context of this article the notion of compliance shall refer to so called criminal compliance. Anticorruption programs form the essential part of criminal compliance.Google Scholar

5 On 8 December 2008, the first conference on corruption of over 40 German prosecutors took place. The conference was organized by Transparency International. Overall, no company presumably acted under comparable pressure and invested more in compliance than Siemens. For the time being, the leading role of Siemens in the setting of compliance standards is therefore generally accepted.⁶ A decisive question is whether bribery at Siemens has been peculiar to a degree that excludes a sensitive comparison with other companies. If this is true, the development of compliance standards could - at least partly - generally be regarded as excessive if not ill-driven. The author argues that 1) the Siemens case cannot be regarded as exceptional to an extent that would justify incomparability with other companies and 2) though it had particularities the compliance organisation of Siemens will establish footprints that many German corporations will have to follow. Based on the assumption that German corporations will implement “best practice” compliance standards step-by-step, they may have to face difficult times in international competition. In that respect the last section of this article deals with the challenge of “unfair” competitors and alternative mechanisms against corruption initiated by private corporations and supported by international organizations, in particular, the World Bank.Google Scholar

6 See Press Release, supra note 2 (praising Siemens’ outstanding new compliance structures).Google Scholar

7 Press Release, Siemens, Legal Proceedings—First Quarter of Fiscal 2009 (Jan. 27, 2009).Google Scholar

8 See Press Release, Siemens, Legal Proceedings—Fiscal 2007 (Nov. 8, 2007) (discussing the fine related to bribery paid by manager's belonging to Siemens’ former telecommunications or Com Group).Google Scholar

9 The disgorgement was agreed to by Siemens due Siemens AG settled a civil action against it brought by the U.S. Securities and Exchange Commission (SEC) for violations of the FCPA.Google Scholar

10 See Press Release, supra note 8 (according to press releases costs for external advisors have been €347 million in 2007); see also Press Release, Siemens, Legal Proceedings 2008—Fourth Quarter of Fiscal 2008 (Nov. 12, 2008) (according to press releases costs for external advisors have been €510 million in 2008); see also Press Release, supra note 7 (according to press releases costs for external advisors have been €50 million in the first quarter of 2009).Google Scholar

11 Press Release, supra note 7 (and Summary of Findings with respect to the Proceedings).Google Scholar

12 Possible fines by the DOJ were estimated by US legal experts up to $3 billion.Google Scholar

13 See Schemmel, Alexander & Hacker, Philipp, Korruptionsamnestie - Eine neue Vokabel im nachhaltigen Kampf gegen Korruption- Paradoxon und Paradebeispiel im Kampf gegen Korruption, Zeitschrift Für Rechtspolitik (ZRP) (J.L. & Pol.), 4 (2009), available at http://beck-online.beck.de/default.aspx?vpath=bibdata/zeits/ZRP/2009/cont/ZRP.2009.H01.htm (stating more than $1 trillion dollars (US$1,000 billion) is paid in bribes each year, according to ongoing research at the World Bank Institute); see also World Bank, http://web.worldbank.org (last visited May 28, 2009) (discussing additional information and statistics).Google Scholar

14 Press Release, supra note 2, at para. 90.Google Scholar

15 See Complaint at 14, U.S. Sec. and Exch. Comm'n v. Siemens Aktiengesellschaft (D.D.C. 2008) (No. 1:08-cv-02167), available at http://w1.siemens.com/press/pool/de/events/2008-12-PK/SEC.pdf (finding low ranked countries pursuant to the Corruption Perception Index (CPI) like Nigeria, China, Venezuela, Russia, Vietnam, Bangladesh are countries were according to findings of the SEC Siemens paid bribes); see also Corruption Perception Index, Transparency International, http://www.transparency.org/news_room/in_focus/2008/cpi2008/cpi_2008_table (last viewed May 28, 2009).Google Scholar

16 See Statement of Siemens Aktiengesellschaft: Investigation and Summary of Findings with respect to the Proceedings in Munich and the US, Siemens, Dec. 15, 2008, available at http://w1.siemens.com/press/pool/de/events/2008-12-PK/summary-e.pdf (referring only to the proceedings against Siemens and not the individuals that bribed).Google Scholar

17 Press Release, supra note 2.Google Scholar

18 See Brief of Petitioner at para. 38, United States v. Siemens Aktiengesellschaft, No. 1:08-cv-02167 (D.D.C. 2008) available at http://www.usdoj.gov/opa/documents/siemens-ag-info.pdf (discussing DOJ information against Siemens AG).Google Scholar

19 The Economist, Nov. 29 2008, at 10.Google Scholar

20 Statement of Siemens Aktiengesellschaft, supra note 16, at 10.Google Scholar

21 This is confirmed by internal guidelines of German financial authorities known to the author.Google Scholar

22 Statement of Siemens Aktiengesellschaft, supra note 15, at 11–12.Google Scholar

23 See Complaint, supra note 15.Google Scholar

24 Press Release, supra note 2, at para. 90.Google Scholar

25 This poses a new challenge for Siemens. See Section VII of this article.Google Scholar

26 The main features are described in Statement of Siemens Aktiengesellschaft (note 16), 20. The following description of Siemens’ compliance system is based on this statement.Google Scholar

27 See Memorandum from Dept. of Justice, United States v. Siemens Aktiengesellschaft, (D.D.C. 2008) (No. 1:08-cv-02167), available at http://www.usdoj.gov/opa/documents/siemens-sentencing-memo.pdf (stating DOJ Department's Sentencing Memorandum).Google Scholar

28 See Statement of Siemens Aktiengesellschaft, supra note 16, at 4.Google Scholar

29 See Corporate Internal Investigation 4 (Paul Lomas & Daniel Kramer eds., 2008).Google Scholar

30 The Sarbanes-Oxley Act of 2002, for example, dictates often internal measures of corporate conduct in multinational corporations.Google Scholar

31 Deming, Stuart H., The Foreign Corrupt Practices Act and the New International Norms 350 (2006); Partsch, Christoph, The Foreign Corrupt Practices Act (FCPA) der USA 41 (2007).Google Scholar

32 U.S.S.G. § 8B2.1 b (5).Google Scholar

33 U.S.S.G. § 8B2.1 b (2).Google Scholar

34 See Bock, , Criminal Aspects of Compliance Discussion, ZIS, 2009, at 68, available at http://www.strafverteidiger-stv.de/hlv/stv/stv_home.nsf/index/zeitschriftenuebersicht/zeitschriftenuebersicht_02Februar2009 (discussing naturally criminal compliance programs are not solely implemented to comply with § 130 OWiG but to avoid the overall risk of criminal liability of management and employees, i.e. the individuals of a company).Google Scholar

35 § 130 OWiG in conjunction with § 9 OWiG.Google Scholar

36 Gürtler, Ordnungswidrigkeitengesetz (OWiG), § 130 margin number 11.Google Scholar

37 Id. § 130.9.Google Scholar

38 Preamble of the German Corporate Governance Code (2008), available at http://www.heidelberg.com/www/html/en/content/articles/investor/facts_about_heidelberg/corporate_governance/preamble.Google Scholar

39 Sidhu, Karl, ZCG, at 16 (2008).Google Scholar

40 Dr. Gerhart Kromme has become chairman of the Siemens supervisory board in April 2007. He resigned from the Commission of the German Corporate Governance in 2008.Google Scholar

41 See Hüffer, Uwe, Aktiengesetz, § 161.1, available at http://beck-online.beck.de/?vpath=bibdata/komm/HuefKoAktG_8/AktG/cont/HuefKoAktG.AktG.P161.T6.htm (discussing the regulatory nature of the German Corporate Governance Code).Google Scholar

42 Nell, , ZRP, at 149 (2008).Google Scholar

43 World Bank Institute, http://info.worldbank.org/etools/antic/index.asp (last visited May 28, 2009).Google Scholar

44 The integrity pact approach was originally developed and is employed by Transparency International and its various national chapters.Google Scholar

45 See Prüfer, Geralf, Korruptionssanktionen gegen Unternehmen - Regelungsdefizite/Regelungsalternativen 109 (2004) (questioning the efficiency of the integrity pact).Google Scholar

46 See Wir Haben Fast Unser Eigenes FBI, Süddeutsche Zeitung, Jan. 29, 2009, available at http://www.sueddeutsche.de/wirtschaft/231/455904/text/5/ (stating Solmssen, the General Counsel and board member of Siemens, has named them in an interview “cartels of the good”).Google Scholar

47 A “certifying business coalitions” has, for example, been founded by the Bavarian construction industry. Following various incidents of corruption an independent association for ethical management (EMB) was founded in 1996 to procure external audits for its members. Currently the EMB counts 43 audited members and 3 new members with their first audition outstanding. See Bauindustrie Bayern, http://www.bauindustrie-bayern.de/ethik.html (last visited May 28, 2009).Google Scholar

48 The agreement of competitors upon certain anticorruption principles must be implemented under consideration of antitrust laws. Strategies, measures and meetings shall therefore at all times be coordinated with legal counsel to prevent violations of these laws.Google Scholar