FIRM Yearbook 2018 - Prof. Dr. Josef Scherer

FIRM Yearbook 2018 - Prof. Dr. Josef Scherer

Manager release from liability and digital transformation versus irrationality in the light of current legal judgements from the Federal Court of Justice

Josef Scherer

My former positions as a public prosecutor and judge and my current work as a lawyer in economic (criminal) matters, a compliance ombudsman, an external compliance officer and a consultant in the area of governance, risk and compliance (GRC) have several common denominators: All functions deal proactively with obligatory behaviour of companies, managers and employees, or reactively with compliance violations.

There is a good reason for this. The “perceived” intensification of liability and sanction risks for executive boards, directors, supervisory boards and even shareholders faced with the accusation of having acted in breach of their duties can be objectively measured. In the 10-year period from 1986 to 1995, there were as many judgements on manager liability as in the previous 100 years [see Bayer 2014, p. 897 ff.]. For the following 10 year periods 1996-2005 and 2006-2015, a further doubling was measured or estimated [see Scherer/Fruth 2015]. As a result, there is a growing collective need from those affected for appropriate tools to support management and employees alike in performing their duties in a legally sound manner: processes that also ensure the effectiveness (“practice”) of compliance.

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