Punishable Wahndelikt – Confession of permitted manipulation?

How FIFA, Microsoft, WPs, BP and the Mafia are sued under the same law and pilloried through American glasses, Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm explain in a multi-part article.

The first part was about the “Racketeer Influenced and Corrupt Organizations Act”, a US federal law that makes this kind of jurisdiction possible. In the second part the Directors-and-Officers-Insurance is examined. The third part focused on the topic of premeditation – despite confession. In the fourth risk management is written in capital letters. The fifth deals with “legally prescribed incorrect measurements”.

And our series on the VW exhaust scandal ends with the question of organisation, personal obligation to take responsibility, and whether Diesel-Gate should not rather be considered a “stagless delusion”:


The question of organisation and personal responsibility

Supervisory Board members are responsible for obtaining expert advice in good time (see Munich Regional Court, judgement of 31 May 2007, in: NZI 2007, 609), because in addition to economic efficiency and expediency they must also monitor legality, §§ 116, 93 AktG: This does not without exception also include the obligation to regress possible damages to the executive board (BGH, judgement of 21 April 1997, in: NJW 1997, 1926 f.). The burden of proof for its diligence in the performance of its duties also lies with the Executive Board (BGH, decision of 18 February 2008, file no. II ZR 62/07). If carefully documented and reviewed, investigations can be completed quickly.

Some former managing directors were in the press with single and multi-digit severance payments. Meanwhile, the actual payments were sometimes made solely to the liability insurer or a manager’s insurance company for compensation. The situation becomes particularly explosive when a tortious act is involved – because in this respect, in the event of domestic insolvency there is hardly any prospect of shaking off creditors by means of residual debt discharge at least after a few years.

Some managers have had to make do with the garnishment-exempt amount of currently 1,073.88 euros for years – despite up to more than 20,000 euros monthly company pension payments – in order to compensate for the damage caused, for example because a manager’s insurance policy had extended this, but the insurance conditions had unnecessarily provided for possibilities of recourse. A business economist in auditing will hardly notice this.


Change of behaviour leads to exemption from liability with regard to the RICO Act

When it comes to RICO, which would triple the damage, it makes a difference whether a continuation of the behaviour is to be feared. It is therefore helpful if the company shows that it has comprehensively purified itself by all actual measures and announcements for immediate implementation:


Winterkorn said:

“I give you my word that we will proceed with the necessary transparency and openness in all this. We will do everything we can to regain your trust, step by step.”


Winterkorn did not speak of resigning, but asked to be excused.

“I am infinitely sorry that we have betrayed that trust. I formally apologize to our clients, the authorities and the general public for our misconduct.”


VW and manipulation – that should never happen again, said Winterkorn.

“The irregularities in our Group’s diesel engines contradict everything that Volkswagen stands for. Even I don’t have the answers to all questions at the moment.”


Confession of allowed manipulation?

EPA did not have the programming code for the engine control software, and EPA’s findings were not suitable to actually prove – beyond circumstantial evidence – targeted manipulation only for the test bench.

The EPA threatened that the 2016 model would not be approved – only VW admitted to having deliberately manipulated it.

But if you now look at the further course of events, VW did not even know whether VW had deliberately (and illegally) manipulated. VW could also have fought through the discussion (which had already been going on for a year) and made it a dispute with EPA. Could the damage caused by not approving the 2016 model in the USA have been less?

So far, it has been a matter of admitting an accusation which may have been unjustified in order to avoid greater damage – in retrospect probably a wrong decision. Or maybe not.

Apparently VW does not yet know whether the software – which objectively works like this – should actually manipulate the measurements during the exhaust emission test. And certainly not who should have commissioned and implemented this in what way.


An impunity offense?

It seems that VW has admitted something without first having examined more closely whether the accusation is true at all. And so far this is apparently not known either. Only nobody says this, but one accuses the purposeful manipulation, but does not know who is supposed to have manipulated purposefully without permission. Things thus develop a momentum of their own, you can’t go back. It may be necessary to present guilty parties, even though there are none at all, and even though they have not been deliberately “manipulated”. Or, alternatively, without it being possible to prove this in the legal sense even if all the facts were disclosed.

If a perpetrator admits to an act which he considers to be punishable under the law, this is referred to as an unpunished electoral or putative offence. Something like this happened recently to a renowned criminal defence lawyer who advised his client to say as a confession within the framework of a “deal” of the public prosecutor’s office “in 2013 I made the decision to evade my taxes for the then current year”: An electoral offence, because one can only make the resolution regarding taxes from 2013 if the obligation to make a declaration was legally created in the following year 2014. The public prosecutor’s office has apparently not noticed this so far. All those who are later prosecuted for aiding and abetting are likely to clap their hands on their thighs – because aiding and abetting unpunished behaviour remains unpunished.

Then VW would only have to deal with a wrong decision in crisis PR this year, and the focus would later be on yet other actions and parties involved. One can only assume that the person who admitted the manipulation in the USA did not know whether the manipulation had actually taken place. The fact that VW’s board of directors and supervisory board were prepared to believe this without their own knowledge, and to hold the alleged culprits responsible for a merely suspected act, could at least show that VW is capable of such behaviour.



by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm


by courtesy of


www.experten.de (published on 05.07.2017)


Link: https://www.experten.de/2017/07/05/strafloses-wahndelikt-gestaendnis-einer-erlaubten-manipulation/


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Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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