Environmental Criminal Proceedings Against Companies and Executives

In corporate environmental cases, the investigation must attribute the operational event to an individual. Actual responsibilities and information flows matter more than the organisation chart or job title.

By Dr. Julius Hagen, Attorney at Law

Environmental proceedings affect the operation and its leadership on different levels

After water pollution, problematic plant operation or unlawful waste handling, investigators examine both the event and the organisation behind it. They compare permits, operating instructions, measurements, emails, board papers and employee accounts. The aim is to identify who made a decision, received a warning or could have prevented the deviation.

For managing directors and other senior personnel, the central issue is individual attribution. The corporate office alone does not establish the allegation. The case must identify whether the person acted personally, held an operator-specific position, breached a duty to intervene or approved a concrete decision. The company may also face its own fine under Section 30 OWiG.

Attribution depends on function and actual responsibility

Section 14 StGB covers organs, authorised partners and expressly appointed persons where special personal characteristics are required for liability. In a company, the review must therefore identify who held the relevant operator or management function and what the appointment actually covered. A managing director may be responsible for an environmentally regulated operation without personally making every technical decision.

For operator-specific offences, the person’s function must be connected to the event itself. Operating a facility or handling a waste stream may be relevant to attribution, but it is not conclusive on its own. At management level, the file must show whether a decision, instruction or culpable omission contributed to the environmental allegation.

Delegation, supervision and the ability to intervene

A sound delegation requires an identifiable scope of duties, sufficient authority and a professionally suitable appointee. The proceedings therefore examine more than appointment documents. They ask whether the appointee received information, could issue instructions or stop an operation and whether management exercised meaningful oversight.

Section 130 OWiG creates a separate administrative-offence assessment for failures in required supervision. It requires a violation that proper supervision would have prevented or materially impeded. That assessment neither proves the environmental offence itself nor establishes individual liability for a managing director.

For environmental and operational officers, the relevant statutory or internal scope and the practical ability to intervene are decisive. A title without information, resources or an escalation route does not change the operation in practice. Management likewise cannot discharge its control duties by referring only to the technical department.

How a warning can become an individual allegation

A typical attribution sequence begins with a deviation. A measurement exceeds a limit, a technical department reports a defect or an authority challenges the permit position. If management receives that information, approves continuation and takes no corrective action, investigators may treat that as an individual decision. Emails, minutes, approvals and timestamps then form the evidentiary chain.

Whether the result is intent or negligence depends on the quality and timing of the information. The analysis must address the technical significance of the warning, alternative explanations, the person’s authority and whether intervention was possible and required. A signature or mere awareness of a problem does not answer those questions.

Keeping the company, executives and employees separate in the proceedings

One investigation may involve several procedural positions at once. The managing director may be an individual suspect while the company must preserve documents and defend itself against a fine. Technical officers may be treated as witnesses or suspects. A single corporate response should therefore not assume that all participants can make the same statement or have identical interests.

Before any statement, the file should be compared with the permit position and the timeline. Established facts should be kept separate from inferences drawn by investigators. Internal investigations, search issues and possible corporate fines are addressed on the dedicated related pages.