Defence in German AWG Investigations

By Dr. Julius Hagen, Attorney at Law

Facing an AWG investigation in Germany

A customs inspection or a shipment held at the border can lead to a criminal investigation under Germany's Foreign Trade and Payments Act (AWG). If your premises are searched or you receive a summons naming you as a suspect, you should seek legal advice. An internal report can also trigger an investigation. A letter from BAFA or a bank needs closer examination: it may be asking for information about a transaction, or it may already concern a suspected offence.

As a suspect, you have the right to remain silent about the allegation and to consult defence counsel. Different rules govern what witnesses, companies and recipients of statutory information requests must disclose. Before you reply, we establish how the authority is treating you and what you are required to answer.

The role of German customs

The public prosecutor leads the criminal investigation. Under section 21 AWG, main customs offices and customs investigation offices can assist the prosecutor and have their own investigative duties in specified cases. BAFA, Germany's Federal Office for Economic Affairs and Export Control, deals in particular with export authorisations and technical classification questions. Information provided in a licensing procedure may later appear in the investigation file.

If an authority requests information under section 23 AWG, we examine the questions and the legal duty to answer them. The provision allows self-incriminating answers to be withheld in certain circumstances. Before the deadline expires, you need to know whether a response is required, whether the request needs clarification or whether an extension should be sought.

What the investigation file reveals

Access to the file shows which shipments, payments or services underpin the suspicion. We compare the investigators' account with contracts, export declarations, end-use certificates and internal approvals. Changes to the recipient, route or intended use can be particularly revealing: when was the change agreed, who knew about it and what was actually carried out?

Each transaction must be considered under the rules in force at the time. A later prohibition cannot simply be applied to an earlier transaction. Amendments after the alleged offence may also affect criminal liability. We use that assessment to decide whether a submission would help and which evidence should accompany it.

Individual responsibility within the company

A director, an export-control manager and an employee approving a payment will usually have different responsibilities. Each allegation must be examined against what that person did or failed to do, what decisions they could make and what information they had. A signature on an approval therefore needs to be considered in the context of the process in which it was given.

When a company investigates responsibility for a breach internally, its interests may diverge from those of individual employees. Before interviews or joint statements, we discuss whom we represent and whether others need their own lawyers. We also consider possible conflicts between employment-related duties to provide information and rights in criminal proceedings.

Defending the case as it progresses

We request access to the file, assist you during questioning and address the handling of seized documents and data. Once we have reviewed the evidence, we discuss whether you should respond to the allegation. A statement may explain the events or support a legal objection. Continuing to remain silent may also be the right course.

Seizure and asset restraint orders may be challenged separately. Depending on the evidence, we may seek to have the case discontinued, challenge a penal order or defend you following an indictment. Whether the transaction breached section 17 or section 18 AWG remains central to the defence.