Why the secrecy about Airbus’s €81 million foreign bribery fine?

On February 9, 2018, the Office of Public Prosecutor Munich I imposed a fine of €81.25 million on Airbus Defence and Space GmbH, consisting of a confiscatory element (disgorgement of profits) of €81 million and a punitive element of €250,000. The Public Prosecutor’s Office issued a press release on the same day, as did the company. Neither party released the text of the decision.

The editor of the magazine Scheinwerfer, published by Transparency International Germany, asked both parties for the text; Airbus failed to reply, and the Office of the Prosecutor Munich I declined, but answered some additional questions. The editor lodged a complaint against that decision of the Office of the Prosecutor, which was dismissed. A further complaint by the editor was again dismissed, this time by the Local Court of Munich (a translated version of the statement is available here).

The Court argued that Article 4 of the press laws of Bavaria give the press a right to information, but not to access the file. A claim for a copy of the decision had to be viewed as a subcategory of a claim to access the file.

The Court further reasoned that while the Federal Constitutional Court[1] held that courts had an obligation to make available copies of decisions resulting from the principles of rule of law and of comprehensive access to justice, that decision did not extend to prosecutors’ decisions that impose a fine.

Finally, the Court stated that neither the basic right to a free press under Article 5 of Germany’s Basic Law nor the OECD Anti-Bribery Convention include the right of the press to access files.

The order of the Local Court in Munich is not convincing.

First, one could argue that the principles of rule of law and of democracy also require that texts of decisions imposing a fine be made available upon request by the press. In its order regarding court decisions, the Federal Constitutional Court referred to a decision of the Federal Administrative Court[2], which emphasized the control function of the press in a democracy. This aspect is important in a situation where the decision of the prosecutor’s office relating to the confiscation element is not based on its own investigation, but on estimates provided by the company[3]. The ensuing discussions between company and prosecutor may be justified by the right of legal persons to be heard, yet they create settlement-like circumstances which make control by the press all the more necessary.

Secondly, the OECD Anti-Bribery Convention requires member states which do not apply criminal responsibility on companies to ensure that non-criminal sanctions are effective, proportionate and dissuasive. A sanction that can be negotiated and is only revealed at the discretion of the prosecutor is not dissuasive. Furthermore, the principle of “functional equivalency”[4] applies. Criminal sanctions would be imposed by a court and the text of such a decision would need to be made available to the press[5]. So, the text of decisions imposed in an administrative proceeding would, equally, need to be made available to the press.

The text of decisions imposing sanctions amounting to millions of Euros negotiated between companies and prosecutors should be available to the scrutiny of the press. At least, the new law on sanctions of companies that the current government promised to enact must ensure disclosure of the text of decisions (anonymized if necessary), at least to the press, if not to citizens.

[1] BVerfG, order of Sept. 14, 2015, 1 BvR 857/15

[2] Federal Administrative Court, decision of 26 Feb. 1997, 6 C 3.96

[3] Implementing the OECD Anti-Bribery Convention, Phase 4 Report: Germany, # 223

[4] General comment 2 of the Commentaries to the OECD Anti-Bribery Convention

[5] Regional Court Munich I, order of 24 January 2016–5 KLs 563 Js 45994/07, https://openjur.de/u/973062.html concerning fine imposed against Siemens by the Regional Court Munich I on 4 October 2007 in the amount of Euro 201 Million