In such situations the management must make many decisions with potential deep impact, like:
- Do we have to perform an internal investigation?
- How should we deal with potential investigations by authorities?
- Which legal measures must be taken and are there deadlines?
- What do we communicate vis-á-vis our stakeholders and the public?
To help companies identify the most relevant tasks in crisis situations and to facilitate the initial assessment of the most important legal questions, Schoenherr's Crisis Management Team has created a CEE-wide Internal Investigations Primer.
In addition, Schoenherr's CEE-wide White-Collar Crime Team has developed an Anti-Corruption Guide helping companies get a better understanding of the legal framework of their business, especially in CEE. The Anti-Corruption Guide helps identify the most relevant legal issues when it comes to questions relating to accepting or offering advantages, like lunch invitations or gifts, in the course of a business relationship. The Anti-Corruption Guide is thus a useful tool to mitigate the risk of non-compliance and crisis situations.
The Internal Investigations Primer and the Anti-Corruption Guide show how Schoenherr's lawyers work together in our jurisdictions at a high professional level and the firm's ability to provide tailor-made legal advice for any crisis. But these new tools are also a great opportunity for companies to identify legal needs in escalated situations.
Let's look at an example:
A multinational company operating in CEE learns via its internal whistleblower system that employees in Austria, Croatia, Bulgaria and Montenegro may be involved in a scheme of paying bribes. The management needs to react and wants to respond by opening an internal investigation. It decides to use the Internal Investigations Primer to clarify the most urgent questions and to draft an initial roadmap of the investigations to come.
After a short look in the Internal Investigations Primer, it is clear that the management is permitted to initiate internal investigations in the affected jurisdictions. However, the management first needs to obtain more information about the case and therefore wants to interview the staff. Thus, the question arises: "Does conducting interviews regarding our employees generally require the approval of the works council or some other interest group?"
AT, BG, MNE: No
The management also needs to prepare possible employment law measures and would like to assess if a suspicion of criminal activity generally allows employment agreements to be terminated without notice in the relevant jurisdictions.
AT, HR: Yes
BG, MNE, No
In the context of employment law measures, the management would also like to assess if there are certain deadlines to be observed when it comes to terminations without notice. A quick look in the Internal Investigations Primer shows that the deadlines in the affected jurisdictions vary. While Bulgarian law requires the grounds for termination to still be valid at the moment of termination, Croatian law, requires that the termination is made within 15 days from the discovery of the fact upon which the termination is based, and in Montenegro the employment is terminated automatically if the employee would be sentenced for more than six months of imprisonment.
The management also needs to assess the possible legal risks for the company itself, including its subsidiaries in the affected countries, and raises the question: "Do the affected jurisdictions provide for corporate criminal responsibility of our legal entities there?"
AT, MNE, HR: Yes
BG: No (only administrative liability)
The management is now able to initiate the internal investigation including the consultation of legal experts from Schoenherr for tailor-made advice. In the end, the Internal Investigations Primer thus helped create a good overview of the most important legal issues and save money and time.