GERMANY REVISITS ANTI-CORRUPTION MEASURES IN LIGHT

UNCLAS SECTION 01 OF 03 BERLIN 000046 SIPDIS SIPDIS E.O. 12958: N/A TAGS: ECON EFIN ETRD GM KCRM OECD SUBJECT: GERMANY REVISITS ANTI-CORRUPTION MEASURES IN LIGHT OF SCANDALS ¶1. Summary. The arrest of a former top Siemens board member brings to six those detained in a scandal drawing attention to German corporate governance. The Siemens case is the latest of a number of corporate scandals that include a Volkswagen prostitution and embezzlement ring and German activities under the Iraqi Oil-for-Food affair. In response, the government has drafted legislation expanding the scope of punishable white-collar crimes and jurisdictions. German business, lamenting what it sees as an ineffective and burdensome regulation, has called for self-policing of its industries. End Summary. ARRESTS AT SIEMENS, VICE AT VOLKSWAGEN -------------- ¶2. A number of high-profile cases in recent months have drawn public attention to corporate corruption in Germany. In December, Thomas Ganswindt, a former member of the supervisory board of Munich-based Siemens, once rumored to be a candidate for CEO, was arrested on bribery, embezzlement, and tax evasion charges. Ganswindt lies at the heart of a scandal in which Siemens employees in Greece and Germany allegedly embezzled over U.S. $550 million to pay bribes outside Germany via shell companies throughout Europe. While the most prominent deal involved major contracts for fixed-line telephone service and security technology during the 2004 Athens Olympic Games, allegations extend around the world. Police detained five other Siemens managers while prosecutors have repeatedly questioned CEO Klaus Kleinfed after raids on his and other Siemens executives' homes and offices. ¶3. The scandal has drawn widespread business attention. Siemens' credit rating has consistently been downgraded over the last two months and its minority shareholders association called for Heinrich von Pierer, who was CEO when the alleged events occurred, to resign his current post as supervisory board chairman. For nearly a month, the scandal threatened to derail the nearly U.S. $20 billion merger between Siemens' and Nokia's fixed-line and wireless network infrastructures. Transparency International, the anti-corruption watchdog organization, terminated Siemens' membership in light of the affair. ¶4. Siemens, in response, restated its 2006 and 2005 profits nearly $100 million lower and paid almost $220 million in additional taxes. The company has made exceptional efforts �0A;to appear more transparent while distancing itself from the alleged malefactors. The suspects, Siemens says, are unrepresentative of an otherwise ethical Siemens culture. At one point the firm claimed that a criminal gang appeared to have infiltrated the company. To rehabilitate its image, Siemens hired Michael Hershman, the founder of Transparency International, as a special advisor on regulatory compliance. On January 1, the firm went on to hire a veteran white-collar crime prosecutor as its new compliance officer and empowered him with previously unmatched oversight and access. ¶5. In another high-profile scandal, prosecutors in Lower Saxony indicted Hans-Juergen Uhl on January 4 in a Volkswagen prostitution and embezzlement affair. Uhl, a Social Democratic member of the Bundestag and formerly a senior member of Volkswagen's influential employee council, stands accused of perjury and assisting former Volkswagen personnel chief Peter Hartz in the cover-up. Klaus Volkert, the former head of the employee council, confessed recently that he received U.S. $2 million in "special bonuses" from Hartz to supply Spanish and Korean prostitutes to senior managers on overseas business trips while funding lavish sex parties in Germany. Hartz, who developed former Chancellor Schroeder's labor reforms, will stand trial beginning January 17 on forty-four counts of breach of trust. Thirteen additional Volkswagen executives remain under investigation. IRAQ/OIL-FOR-FOOD SCANDAL RE-EMERGES FOR SIEMENS AND OTHERS -------------- -------------- ¶6. The Iraqi Oil-for-Food scandal has compounded the appearance of widespread corporate malfeasance. Recent developments follow the Volker Commission's 2005 UN report alleging 63 German companies paid bribes to Saddam Hussein's Iraq. On January 3, Bavarian prosecutors announced deeper investigations of Siemens for allegedly bribing Iraqi authorities to win contracts in the medical and power supply sectors under Saddam. State prosecutors in Frankfurt then BERLIN 00000046 002 OF 003 publicly announced an Oil-for-Food bribery investigation against B. Braun Melsungen, whose upervisory chairman, Ludwig Georg Braun, is alsopresident of DIHK, the German Chamber of Industr and Commerce. Melsungen, Siemens, and Volkswagn join some of Germany's most prestigious companies now under heavy scrutiny for bribery scandals, icluding DaimlerChrysler, BMW, and Linde. NEXTLEGAL STEPS, REGULATORY ENVIRONMENT -------------- ¶7. A serious regultory and legal framework to fight corruption in Germany only emerged in the last decade in response to similarly sensational corporate scandals in the 1990's. In 1999, Germany implemented the 1997 OECD Convention on Combating Bribery of Foreign Public Officials in its own statues. Now the government intends to strengthen anti-corruption measures. The draft bill, originally a mechanism simply to implement EU regulations, has assumed more political symbolism in response to the recent scandals, but not more teeth. The law will make existing criminal statutes against bribing government officials within Germany and EU member states applicable worldwide. Any German or foreign national working for German firms could be charged regardless of where the crime takes place. The law will also expand existing measures against money laundering. ¶8. Federal anti-corruption measures remain constrained by the decentralized process articulated in Germany's constitution. Virtually all prosecution of corruption lies at the state level, with jurisdiction determined by the location of the accused firm's headquarters, rather than the location of the crime. The sixteen states maintain their own corruption "blacklists," which only prevent named companies from participating in government contracts with the respective state for a certain period. National companies can simply maneuver around one blacklist to work elsewhere. No formal mechanisms exist to share information among the sixteen states or with the federal government. The OECD has often complained Germany's that lack of coordination and limited federal jurisdiction has hindered other member nations from engaging with their German counterparts, particularly on transnational cases. GERMAN MANAGERS, PUBLIC GROW CYNICAL -------------- ¶9. Representatives of Germany's major industries, despite agreeing on the need for greater anti-corruption efforts, feel existing and proposed legislation create a costly compliance burden without improving enforcement. As a result, the traditionally business-oriented Christian Democrats and their Grand Coalition partner Social Democrats have not taken on the issue in earnest; instead, the minority Green party is creating most of the political momentum. The Federation of German Industry (BDI) and the German Bankers Forum have both called for industry-based internal controls within their own sectors, preferring to make the business case against corruption as the key deterrent. ¶10. Such internal controls already exist with varying impact. The annually-updated German Corporate Governance Code contains statutory regulations in line with international standards for German publicly-listed companies, and serves as a benchmark for transparent and ethical business practices. Nevertheless, the Code resembles more of a list of recommendations, remains unbinding, and only requires firms to declare any non-compliance in annual shareholder's reports. The BDI implements its own anti-corruption guidelines and its broad membership has tended to view the BDI standard as sufficient and effective. Ironically, some of its key points were drafted with language from Siemens' own internal corporate conduct code. ¶11. German society's attitudes towards corruption, once surpassingly tolerant, are shifting. Until recently, German firms could legally claim tax deductions on bribes paid overseas as "business expenses." Germans also distinguish between corruption cases in which managers act against the company to enrich themselves (e.g. embezzlement or padded expense accounts) versus practices of bribing government officials or other authorities. Germans can offer a see-no-evil deference in how companies manage their internal affairs, but remain vigilant in any perceived perversion of their public and social institutions. For instance, Siemens' legal problems do not appear to affect domestic sales, BERLIN 00000046 003 OF 003 suggesting consumer behavior remains tied to price and quality, rather than corporate governance. Nevertheless, picking up on growing public cynicism, Transparency International's annual European survey ranked Germany third in terms of public dissatisfaction with white-collar crime. ¶12. COMMENT. The entrenched interests of varied stakeholders -- firms, consumers, politicians, and legal authorities -- ensure real progress in expanding Germany's anti-corruption measures will require yet-to-be-seen major political efforts. Thus far, the Siemens affair appears to have grabbed the nation's attention, but not enough to warrant real movement beyond handwringing and sound bites from Germany's political and private sector leadership. END COMMENT. TIMKEN JR