The role of the compliance officer – a comparison of us, uk and german law and practice

Resumen

The thesis introduces the role of the corporate compliance officer under US, UK and German law and practice. The aim of the thesis is to analyze the compliance function within private sector companies in the three selected jurisdictions in order to establish a model of the German compliance officer. My research is intended to bridge the gap in knowledge concerning the applicable legal standards required to ensure the effectiveness of this position. There is a lack of uniformity and standardization of the corporate compliance function, since there is no uniform definition of the compliance function outside the banking sector. Understanding the legal framework pertaining to the compliance function in the organizational context could yield findings that provide some much-needed clarity in regard to the compliance officer position. There is a need for a generally applicable definition and a modern understanding of the role of the German compliance officer. The thesis encompasses seven chapters, each dealing with different aspects of the legal comparison of the compliance officer’s function within the common law and civil law system such as the legal roots and the cultural background of the compliance function in the US, UK and Germany. Furthermore, the thesis analyzes the legal framework, case law and contractual terms available in the respective jurisdiction and explores the legal environment for the US, UK and German compliance officer under company, bribery, criminal and employment law. The examination also comprises an analysis of the American, English, and German duties, responsibilities and roles incumbent upon the compliance officer. Lastly, the legal comparison of the findings within the common law framework leads to the presentation of a modern and dynamic model of the German corporate compliance officer applicable to all sizes, business lines and legal forms of companies with a concise description and definition of this function. Chapter one outlines the academic interest behind and the background of the compliance function within private sector companies. Furthermore, this chapter introduces to the scientific objectives of the topic, which lead to the key research questions. Lastly, this chapter explains the methodical approach and presents the design of this study. The next chapter explores the legal comparison of the sources of law in the common law and civil law systems. First, this chapter provides an overview of the fundamental characteristics of the main sources, the general structure of the court systems, the differences and similarities, and a summary of developments of both the common law and civil law systems stated as between 2014 and April 2017. The second chapter goes on to outline a discussion of the relevant English and German literature relating to the issue upon which the thesis focuses. Relevant literature was derived from research in legal, business ethics, management, and governance databases. The findings were essential to the identification of a gap in knowledge and the development of the hypotheses of this thesis. Chapter three analyzes the terms ‘compliance’ and ‘compliance officer’ from a historical legal comparative perspective. This methodical approach of acquiring knowledge by analyzing the relevant literature, which is most applicable to the legal roots and the cultural background of compliance in the US, UK and Germany, leads to a general definition of the term ‘compliance’ and ‘compliance officer’ for the purposes of this thesis. Based on the results of this legal comparison, it establishes a comparative overview of the historical legal roots of the compliance officer. Chapters four to six provide the main subject of the thesis - the corporate compliance officer within the private sector under common law and civil law. These chapters first highlight the relevant primary law, followed by the secondary law relating to the problem. An analysis, examination and comparison of the legal framework of compliance in the areas of company, bribery, criminal law, and employment law follows, as well as landmark cases with respect to compliance and compliance officers, additional guidelines and principles to outline the role and position of the compliance officer under common and civil law. These chapters also discuss the meaning of relevant terms and how they relate to the research questions. In addition, online databases in the US, UK and Germany were searched in order to obtain case law and relevant information, materials and documents on the issues concerned. The findings of this legal comparison could be used to establish an American and English role model of the corporate compliance officer under common law in order, then, to outline a modern and dynamic role of the German compliance officer. Overall, the issues discussed in chapters four to six facilitate a clear understanding of the role and position of the corporate compliance officer. Based on the findings of chapters four to six, chapter seven compares and summarizes the key aspects of the compliance officer models in the US and the UK in terms of the research questions and hypotheses of this thesis. Finally, based on these key aspects of the US and UK models of the corporate compliance officer as a frame, a proposed example of the German compliance officer, to apply to all size of companies, is drawn up and presented. Finally, a definition of the German corporate compliance officer is provided. The results of this thesis – a definition of and model for the German compliance officer, ultimately aim to contribute to a better understanding of the status and role of this relatively new position within German companies. Considering the examination that has gone into this thesis and the knowledge gained from it, some recommendations for future research are offered. In addition, it would be important to examine how the legal framework for compliance and the compliance officers’ function will continue to develop in Germany. It would be necessary to ascertain whether the government regulation will proceed with strong regulation, compliance requirements for corporations, and will provide a legal definition of the compliance officer function. Ultimately, it would be essential to explore in greater detail the future development of the German corporate compliance officer position.