Contents

Appendix 2
Non-criminal penalties in other jurisdictions

Germany

Many civil law jurisdictions have for some time used administrative penalties as an alternative to criminal offences. One example is Germany, where a particularly clear distinction is drawn between criminal law and administrative penal law. There, Ordnungswidrigkeiten or “administrative offences” have replaced minor criminal offences. They are determined, often on a strict liability basis, by an administrative agency after an inquisitorial hearing. The agency determines the amount of the penalty, primarily based on the seriousness of the violation. The defendant may appeal the decision, after which there is an expedited trial in which the court undertakes an independent review of the facts.

The first comprehensive statute providing for Ordnungswidrigkeiten was passed in 1952, and in 1975 the category of minor criminal offences was abolished altogether. Today Ordnungswidrigkeiten deal with, for example, traffic offences; dangerous animals; noise control; and environmental regulation. They allow penalties to be imposed on companies, which otherwise under German law cannot be attributed the moral blameworthiness necessary to commit a criminal offence.691  In some instances they are also used for the imposition of significant penalties; for example certain anti-competitive contraventions of the Act Against Restraints of Competition can attract a maximum penalty of EUR$1m or 10 per cent of annual company turnover.692
691Woods and Macrory, above n 637 at [4.5]–[4.12].
692Act Against Restraints of Competition (Gesetz gegen Wettbewerbsbeschrānkungen), § 81(4).