Lawyer for criminal proceedings involving customs
Customs plays a central role in labor criminal law. Customs authorities can be responsible for investigations against companies and their managing directors, as well as against employees. This is the case, for example, with allegations of undeclared work, illegal employment, or violations of the minimum wage law. However, not every violation constitutes a criminal offense. In many cases, an administrative offense may also apply, with the distinction depending on the specific circumstances. If such criminal or administrative proceedings are initiated against you, this can result in substantial fines, monetary penalties, or even imprisonment – which is why it is crucial to seek legal advice from a lawyer experienced in labor criminal law as early as possible.
Allegation of undeclared work
The accusation of undeclared work is in Act to Combat Undeclared Employment The Act on Combating Undeclared Work (SchwarzArbG) regulates undeclared work. According to Section 1 Paragraph 2 of the Act on Combating Undeclared Work, undeclared work is performed by anyone who fails to comply with the various social security reporting obligations and social security regulations when providing services or work. This is particularly the case when... Employer Failure to properly register employment relationships or violations of record-keeping obligations are also recorded. Furthermore, cases are recorded in which... Employees disregard their tax obligations or if social welfare recipients Do not report any secondary employment. self-employed The accusation is particularly likely if a business registration is omitted. According to the regulation in Section 1 Paragraph 4 of the Act on Combating Undeclared Work (SchwarzArbG), the prohibition does not apply to, for example, familial assistance and help given as a favor or as a neighborly favor.
Besides many Regulations on fines for administrative offenses Does the law against undeclared work also contain some Penal provisions. The fines are stipulated in Section 8 of the Act Against Undeclared Work (SchwarzArbG) and range from €1,000 to €100,000. Anyone who commits an offense under Section 9 Paragraph 1 of the Act Against Undeclared Work (SchwarzArbG) faces a fine or imprisonment for up to five years. Furthermore, the employment of foreigners without a residence permit, residence title, or authorization is specifically criminalized in Section 10 of the Act Against Undeclared Work (SchwarzArbG).
Minimum wage violation
The minimum wage in Germany is regulated by the Minimum Wage Act The Minimum Wage Act (MiLoG) sets standards for the lowest hourly wage that can legally be paid to an employee. The customs authorities are responsible for monitoring compliance. Failure to comply with these regulations can constitute an administrative offense under Section 21 of the MiLoG. Closely related to this is the criminal offense defined in Section 266a of the German Criminal Code (StGB), which requires intentional commission, meaning that criminal proceedings are possible in some cases of violations.
Section 21 of the Minimum Wage Act (MiLoG) lists a wide range of administrative offenses that are punishable with regard to compliance with minimum wage regulations. These include, among other things, violations of Obligations to cooperate, tolerate, provide information or document, These offenses can be committed intentionally or negligently. The penalty for violations depends on the type of offense and the specific amount of the minimum wage shortfall. The maximum fine for most violations is between €30,000 and €50,000. However, violations of the minimum wage payment itself are subject to different penalties. Fines up to €500,000 conceivable. In addition, both employees and social security funds may be entitled to compensation for the difference, which must then be paid retroactively.
Withholding and misappropriating wages
One of the main focuses of customs investigations in labor criminal law is the offense of withholding and misappropriating wages under Section 266a of the German Criminal Code (StGB). Particularly in cases of minimum wage violations, criminal liability under Section 266a StGB often follows almost automatically as soon as intent can be proven.
According to Section 266a Paragraph 1 of the German Criminal Code (StGB), an employer is liable to prosecution if they fail to pay the employee's social security contributions. Section 266a Paragraph 2 further covers situations in which contributions are not paid, or not paid correctly, due to incorrect or incomplete information or the unlawful withholding of essential facts. This is generally an intentional offense punishable by imprisonment of up to five years or a fine. In addition to the criminal consequences, there are regularly substantial other penalties. Back payments of social security contributions, taxes and interest. Section 266a, paragraph 4 of the German Criminal Code (StGB) also regulates particularly serious cases in which actions are taken on a large scale for gross self-interest, false documents (possibly from third parties) are used, the perpetrator acts as a member of a gang, or the assistance of a public official is exploited. In such cases, the maximum penalty increases to imprisonment for six months to ten years.
Federal Court of Justice (BGH), decision of November 28, 2024 (Case No.: 1 StR 376/24) on fraudulent activity and withholding of contributions:
In its decision of November 28, 2024, the Federal Court of Justice clarified that Section 266a Paragraph 2 of the German Criminal Code (StGB) requires that social security contributions not be paid specifically because the employer provides false or incomplete information to the responsible collection agency regarding facts relevant to social security law, or completely conceals such information ("as a result"). A connection must therefore exist between this false information and the subsequent non-payment. According to the Federal Court of Justice's jurisprudence, however, strict causality is not required. It does not need to be established that the employer would necessarily have paid the contributions had the information been correct. Rather, a so-called functional connection is decisive: The incorrect or omitted information must typically be capable of enabling or promoting the non-payment of contributions. Unlike fraud (Section 263 StGB), a disposition of assets by the collection agency due to error is not required. If an employer provides false or incomplete information to the collection agency, or conceals significant facts, and nevertheless fails to pay the total social security contributions due, the necessary causal link is generally established. The non-payment then materializes the risk to contribution revenue that was created precisely by the inaccurate or omitted information.
In addition to fulfilling the elements of the offense under Section 266a of the German Criminal Code (StGB), there is also the possibility that such violations may only be considered as Administrative offense This can be considered a violation. According to Section 8 Paragraph 3 of the Act Against Undeclared Work (SchwarzArbG), this is conceivable if the act was carried out recklessly. Recklessness in this context corresponds to an increased form of negligence. In such cases, a fine of up to €50,000 may be imposed.
From a punishment can However, under certain circumstances apart from become: According to Section 266a Paragraph 6 Sentence 1 of the German Criminal Code (StGB), the prerequisite for this is that the amount withheld is communicated in writing when the contribution is due or immediately thereafter, and the reasons for the delayed payment are explained, including details of serious efforts made to obtain payment.
Criminal defense by lawyers experienced in labor criminal law
The lawyers at our criminal law firm are happy to assist you in your defense in criminal and investigative proceedings conducted by customs authorities. Our goal is to work with you to develop the right defense strategy for your case and to exhaust all conceivable defense options to achieve the best possible outcome. As experienced criminal defense lawyers, our attorneys offer you the necessary expertise!
FAQ
What is undeclared work?
Undeclared work is performed by anyone who fails to comply with the various social security reporting obligations and social security regulations when providing services or work.
Who is responsible for monitoring undeclared work and minimum wage compliance?
In Germany, the Financial Control Unit for Undeclared Work (FKS) is responsible for investigating and prosecuting undeclared work, illegal employment, and minimum wage violations. It is a unit of the customs service.
Can undeclared work be reported?
Yes, relevant information can be sent (even anonymously) to the responsible main customs office.
Does one have a right to the statutory minimum wage?
Yes, in principle all employees have this right. However, there may be additional regulations in certain sectors.
What are the consequences of violating the minimum wage?
Violations of minimum wage regulations constitute administrative offenses and are punishable by high fines – up to €500,000. In addition, back payments of the difference must be made.
When can an employer be punished under Section 266a of the German Criminal Code?
An employer is liable to prosecution under Section 266a of the German Criminal Code if he fails to pay the employee's social security contributions, provides incorrect or incomplete information in this regard, or unlawfully conceals significant facts.
What is the penalty for an offense under Section 266a of the German Criminal Code?
Withholding or misappropriating wages is punishable by a fine or imprisonment of up to five years. In particularly serious cases, a prison sentence of between six months and ten years is possible.
What constitutes a particularly serious case within the meaning of Section 266a of the German Criminal Code?
A particularly serious case exists if actions are taken on a large scale for gross self-interest, false documents are used, possibly from third parties, one acts as a member of a gang, or the assistance of a public official is exploited.
Can proceedings under Section 266a of the German Criminal Code be avoided?
Yes, this is conceivable if, when the social security contributions are due or immediately thereafter, the amount withheld is communicated in writing and the reasons for the delayed payment are explained, including details of serious efforts made to rectify the situation.
What is the difference between a regulatory offense and a criminal offense in this context?
Administrative offenses punishable by fines typically involve violations of the rules on undeclared work and minimum wage laws, which do not need to be committed intentionally. However, withholding or misappropriating wages, as defined in Section 266a of the German Criminal Code (StGB), is a criminal offense.