ANALYSIS · 17 March 2024
Failure to Recall Environmentally Harmful Products: Criminal Responsibility of Managers under German and Turkish Law
Failure to withdraw a dangerous product is not merely a matter of commercial policy. Once the danger becomes known, the criminal responsibility of managers who fail to act depends on duties to avert harm, collective decision-making and individual attribution.
The starting point for liability by omission
Managerial responsibility in environmental criminal law is not confined to active conduct directly causing a harmful result. Failure to take necessary measures despite knowledge of a danger originating within the company’s sphere of control may also raise responsibility by omission. The principles of criminal product liability developed in German economic criminal law therefore provide a comparative reference point for environmentally harmful products.¹
The leather-spray decision and the duty to recall
The Federal Court of Justice’s leather-spray decision clarified the manufacturer’s duty to act once a marketed product proved dangerous to consumers’ life or physical integrity. The product had to be recalled without delay to prevent further harm. Failure to recall was treated as a breach of the duty to avert harm incumbent on the manufacturer and the managing directors with decision-making authority.²
Application to environmental risks
The same approach is especially significant for environmental risks. Where complaints, measurements or actual incidents reveal an environmental danger arising from production or a marketed product, managerial inaction is not merely a business-policy choice. A manager exercising control over the source of danger may be subject to duties of supervision and intervention.³
Assessment under Turkish law
Whether the criteria developed in German environmental criminal law can be transferred fully and across all offences to Turkish environmental criminal law remains open to debate. The Turkish Criminal Code contains no general provision equivalent to section 13 of the German Criminal Code governing commission by omission. The German environmental-law debate may nevertheless be developed in Türkiye within the special provisions governing intentional killing and bodily injury by omission. Turkish Law No. 7223 on Product Safety and Technical Regulations is also relevant to this discussion. It requires economic operators to take measures including remedying non-compliance, suspending placement on the market, withdrawing a product or recalling it. These duties must be taken into account when determining the intervention expected from a manager in an individual case. Criminal responsibility additionally requires an applicable offence and separate findings concerning the manager’s functions and powers, knowledge, intent or negligence, actual ability to intervene and attribution of the result.
Collective decisions and individual responsibility
A collective decision not to recall a product does not automatically eliminate the individual criminal responsibility of board members. The inability of one member to determine the outcome alone does not justify failing to take the initiatives expected of that member. Each member must use the available means to seek a lawful decision, state any objection and demand reasonable measures. The argument that the other members would have voted against intervention does not negate unlawful inaction.⁴
Preventing excessive attribution
Board membership cannot, however, constitute an automatic and unlimited basis of responsibility. Each manager’s assigned functions, knowledge, actual influence over the decision, ability to intervene and the conduct reasonably expected must be determined individually. The risk of excessive attribution requires careful examination of causation, objective attribution, preventability and reasonableness.⁵
The function of environmental compliance
An environmental compliance system must not merely allocate responsibility on paper. It must ensure that information about danger reaches the competent decision-making body and results in prompt action. Recording complaints, forwarding technical findings to legal and management units, predetermining criteria for recalls or suspension of operations and recording dissenting votes are relevant not only to governance but also to individualising criminal responsibility.
Conclusion
Managers cannot hide behind a collective decision where environmentally harmful products are concerned. Responsibility depends not on mere attendance at a meeting but on knowledge of the danger, functions and powers, ability to exert influence and failure to perform the conduct required under an applicable offence. Neither blanket immunity for board members nor punishment based solely on board membership provides a sound solution.
Footnotes
- 1. Saliger, Umweltstrafrecht, p. 71; see also BGH, judgment of 6 July 1990 – 2 StR 549/89, BGHSt 37, 106 = NJW 1990, 2560.
- 2. BGH, judgment of 6 July 1990 – 2 StR 549/89, BGHSt 37, 106 = NJW 1990, 2560; Kuhlen, NStZ 1990, p. 566 (569–570).
- 3. Saliger, Umweltstrafrecht, p. 72; Kloepfer/Heger, Umweltstrafrecht, p. 57; Busch/Iburg, Umweltstrafrecht, pp. 97 et seq.
- 4. BGH, judgment of 6 July 1990 – 2 StR 549/89, BGHSt 37, 106 (129); Kindhäuser/Neumann/Paeffgen/Ransiek, StGB, section 324, para. 66.
- 5. Saliger, Umweltstrafrecht, pp. 72–73; MüKoStGB/Schmitz, preliminary remarks to sections 324 et seq., para. 140.