Image: VOLKER WEIHBOLD
Building law, nature conservation, waste law or employee protection: If these regulations are violated, the administrative courts take action. A checklist is now intended to help companies improve their internal control systems and prepare them for procedures. The list was drawn up on the basis of many years of court practice. “Regulatory inflation” and the threat of higher penalties would require companies to pay more and more attention, says Stefan Leitl.
The managing director of the brick manufacturer Leitl is chairman of the “Operation and Environment” strategy group of the industry division in the Upper Austrian Chamber of Commerce. The checklist, created together with the Linz law firm Haslinger and Nagele, is intended to enable companies – no matter how large and from which industry – to prove their innocence in court, says Leitl. “Stress tests” are also planned to rehearse an emergency in the company.
“In many cases there is no presumption of innocence”
“In administrative criminal proceedings there is often no presumption of innocence,” says Wilhelm Bergthaler. The dean of the law faculty at Linz’s Kepler University and partner at the law firm Haslinger and Nagele led the project. The approach in administrative criminal law is often that an accident or error was foreseeable.
“There is only no fault if the person responsible can prove that he has set up an effective control system in his company that is regularly evaluated,” says Bergthaler. The lawyer also points out that quality management systems (such as ISO certification) are not a “clearance” in court.
Trust is not important, controls are needed
There are sensitive cases for construction companies, for example: the court does not accept the argument that an experienced employee was trusted to comply with the safety regulations on the construction site. Random checks are not enough; at least two inspection officers are needed on the construction site.
The company must also take precautions in the event that one of these employees is absent. Training must be documented in writing. When it comes to nature conservation regulations on a construction site, the company must ensure that every employee is precisely informed about the rules.
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The judges of the state administrative courts inquire in detail about the existing and missing control instruments in the companies in each individual case, says Bergthaler. Only if an “almost perfect control system” can be proven is it possible that the company is not found to be at fault.
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