Code of Conduct, Compliance & Anti-Corruption Policies.
|Code of Conduct, Compliance and Anti-Corruption Policies|
Ortlinghaus Code of Conduct for Subcontractors, Sales Partners and Suppliers
The Ortlinghaus Group is obliged to comply with the principles of ethics, integrity and law-abiding conduct. The Ortlinghaus conduct principles and guidelines are mandatory stipulations for all of our employees.
We also expect integrity and law-abiding, ethical behaviour, which conforms to the 10 principles of the United Nation‘s Global Compact Initiative (www.unglobalcompact.org) and the following minimum standards, from our subcontractors, sales partners and suppliers.
1. Combating corruption
Subcontractors, sales partners and suppliers fight actively and consistently against any criminal or unethical influence on decisions by Ortlinghaus or other companies and institutions, and take action against in their own companies.
2. Combating prohibited collusions
Subcontractors, sales partners and suppliers do not take part in illegal competition-restricting collusions, and fight against prohibited cartels.
3. Respecting fundamental employee rights
Subcontractors, sales partners and suppliers respect the health, safety and personality rights of their employees and undertake to comply with the principles of respectful, fair and non-discriminatory treatment. They employ and remunerate their employees on the basis of fair and law-abiding contracts and comply with the international minimum work standards.
4. Respecting the environment
Subcontractors and suppliers comply with the pertinent statutory environmental standards and minimise environmental footprints.
Ortlinghaus’s subcontractors, sales partners and suppliers are obliged to report their own breaches of the code of conduct, insofar as these affect the business relationship with Ortlinghaus, as well as to report any knowledge of misconduct by Ortlinghaus employees.
- Dr. Georg Jaster
Zollhof 8, D-40221 Düsseldorf
Tel.: +49 (0) 211 / 86 87 145
Subcontractors, sales partners and suppliers are obliged to actively clear up suspected cases and to cooperate with Ortlinghaus without reservation in this context.
If there is a justified suspicion of a breach of the code of conduct by a subcontractor, sales partner or supplier, or if a subcontractor, sales partner or supplier does not comply with
its clarification and cooperation obligation in the event of suspicion, then Ortlinghaus can terminate the business relationship with the pertinent subcontractor, sales partner or supplier with immediate effect on the basis of the existing contractual or statutory rights. Ortlinghaus reserves the right to take further legal steps, especially compensation claims, in the event of a breach of the code of conduct.
Ortlinghaus can update the code of conduct from time to time in a suitable manner, and expects such amendments to be accepted by its subcontractors, sales partners and suppliers.
Ortlinghaus Cartel Compliance Policy
The Ortlinghaus Group has undertaken to comply with the principles of free and fair competition. This pertains firstly to the prevention and combating of corruption, and secondly to the area of competition law and cartel law.
Competition law and cartel law are the statutory regulations which promote and safeguard free competition by prohibiting anti-competitive conduct. This particularly includes:
- Colluding with competitors, including price-fixing, bid-rigging, allocating markets and colluding concerning delivery shortages;
- Exchanging information with competitor companies which is sensitive for competition
- Forcing restrictions or commitments on customers and suppliers
- Abusing market power
We do not tolerate such conduct, and will do everything to avoid and prevent it.
I. Bases(1) Correct and discrimination-free entrepreneurial action and compliance with the principles of fair competition have always been self-evident for our company. Fair competition issues have increasingly penetrated into the public consciousness in recent years too, and have caused the European and national legislators to become active. As a result of various reforms of European cartel law, increased responsibility for effective competition monitoring has been transferred to companies and associations of undertakings.
The Ortlinghaus Group wants to serve as a role model in this area too. We want to meet our entrepreneurial responsibility through the introduction of a comprehensive compliance program whose aim is both preventing and combating corruption, and also fair, transparent and cartel law-compliant conduct in competition.
This policy is intended to give you, the employees and the business partners instructions on how to behave with regard to competition-relevant subjects, in order to make such acts consistent with the statutory requirements.
II. Prohibited Conduct
The following types of conduct are impermissible pursuant to cartel law and are therefore to be refrained from in any event.
1. Bases(1) The cartel prohibition in § 1 of the German Act Against Restraints of Competition (GWB) prohibits agreements between companies and conduct coordinated between them whose aim or consequence is a restriction of competition.
So what are the prohibited types of conduct?
2. Impermissible agreements with competitors(1) As a matter of principle, cartel law prohibits so-called core or “hardcore” restrictions. Such activities can be punished through the imposition of high fines and invalidate the entire contents of the agreement reached. Therefore, they are absolutely forbidden! These are:
- Arrangements and agreements concerning
- price components,
- calculation bases,
- other price parameters, for example stipulating price relations between various products, and
- agreeing to inform each other about the scope of price increases, in order to react correspondingly
The following types of price-fixing are also impermissible. This group includes arrangements and agreements concerning
- calculation factors,
- price surcharges or discounts,
- maximum prices,
- minimum prices,
- fixed prices,
- price-list commitments,
- agreements about equalisation payments, and
- gross-price agreements.
Because a restriction of the quantities offered has a similar effect to agreements concerning prices, quantity restrictions are also impermissible and prohibited by cartel law. This pertains to agreements concerning
- offer quantities,
- delivery quantities, and
- restricting production capacities.
Any agreement concerning
- with whom (customers or customer groups) the parties involved may or should enter into contracts, and/or whom and what customers they may or should acquire or not acquire,
- what areas the parties involved will become active in (supply), and
- at what time the parties involved enter into business trans-actions is a restriction of competition and is therefore prohibited.
- This particularly includes contracts which impose restrictions on the customer group through territory protection.
Tender cartels are agreements and coordinated conduct with regard to a particular call for tenders. They are impermissible pursuant to cartel law, and also have criminal-law relevance. They are prohibited in every conceivable form.
(6) Provisions concerning foregoing direct sales, bundling supply or demand
are usually also competition restrictions which breach cartel law. This applies also for bundling demand through purchasing or acquisition cooperations (pooling). They are only permitted in exceptional cases after prior cartel-law examination and approval.
(7) Joint advertising measures
Joint advertising measures are impermissible if they detrimentally affect the relevant companies‘ freedom to carry out their own advertising. For example, agreeing with a competitor not to take part in a particular trade fair. They are permissible only in exceptional cases and must be examined and approved beforehand from a cartel-law perspective.
(8) Securing quality standards
Agreements with competitors concerning compliance or non-compliance with quality standards or norms can also be prohibited pursuant to cartel law. They are only permitted in exceptional cases after prior cartel-law examination and approval.
(9) Calculation scheme
Calculation schemes entail the risk of them penetrating through to the price configuration of individual companies, which is why they are fundamentally problematic from a cartel-law perspective.
- In particular, handing over specific calculation examples to the competitor is prohibited.
- This also includes giving particular percentages for overheads and profit margins in the evaluation of intercompany comparisons and the template calculations as well as price examples in the calculation schemes.
- Handing over average or minimum values to the competitor is prohibited.
Agreements concerning goodwill services lead to the consequence that the individual company can no longer act freely in the market by individually configuring its goodwill services. They are only permitted in exceptional cases after prior cartel-law examination and approval.
(11) Purchase compulsion and coupling commitments
Moreover, purchase compulsions and coupling commitments are impermissible insofar as these lead to the consequence that the Customer is bound for longer than 5 years and must purchase more than 80% of its needs from Ortlinghaus. They are only permitted in exceptional cases after prior cartel-law examination and approval.
3. Scope of the Prohibition
(1) You may not enter into any agreements concerning the abovementioned issues with your competitor (in writing or orally).
(2) You may not exchange any data with your competitor which pertains to the abovementioned issues (e.g. price lists, individual prices, calculation sheets, customer lists, etc.).
It is unproblematic if you receive such data on the basis of your own market observations. This means from customers or a dealer, etc. With data concerning the competition, for the sake of precaution, always quote the source. Example: “Competitor price according to customer information: €xxxm²”.
(3) A cartel breach can be committed not only through action, but rather inter alia through omission as well.
Particularly in the framework of trade association meetings (taskforce meetings and member meetings, etc.), representatives of competing companies have the direct chance to exchange information regarding their competition behaviour and to coordinate conduct. These meetings are thus particularly sensitive.
Therefore: Leave the meeting if the subject turns to one of the abovementioned points. Declare expressly that you are distancing yourself from these subjects and have your objection recorded in the minutes of the meeting if possible. Then inform your compliance officer.
(4) In practice, it is often difficult for the cartel authorities to determine whether a particular instance of market behaviour is aiming to realise a coordinated commitment or serves other purposes.
Thus, the authorities mostly rely on indicators when making their assessment.
As a result of this, even abstract, “harmless” letters and documents can suddenly acquire another meaning.
- Against this background, particular attention should be paid to no terms being chosen in file notes, letters, emails, files, minutes, etc. which “typically” allow the inference of conduct coordination in competition.
- Particularly in communication with competitors, therefore, “critical” terms should be avoided. Examples:
- “as discussed”; “coordinated”; “agreed”; “mutual”; “as agreed”; “joint decision”; “joint responsibility”; “standardisation”; “consensus”; etc.
III. Consequences in the Event of Competition Breaches
Competition authorities worldwide have far-reaching investigation measures at their disposal, with which they are able to uncover breaches of competition. In particular, they can carry out unannounced raids at the companies and employees involved, seize documents, computers, email servers and mobile telephones, or interrogate people under threat of criminal prosecution. Moreover, companies can report breaches of competition to a competition authority. In many countries, the company which is the first to report a breach of competition benefits from a reduced sentence of up to 100% (bonus rule).
In the event of breaches of cartel law, high fines are a risk in many countries (in Switzerland and the EU, for example, up to 10% of the turnover of the last three years). In addition, private people can file civil lawsuits against companies which were involved in a cartel breach and sue them for compensation.
Cartel proceedings also trigger high costs in the form of representation and advice fees, management time and reputation damage.
Depending on the country and behaviour, not only the companies are pursued by the competition authorities, but rather also the individuals who acted on the company‘s behalf.
The Ortlinghaus Group monitors compliance with this Policy, and carries out internal investigations in the event of presumed breaches. Employees are obliged in the framework of these investigations to submit all of the facts and documents known to them. Employees who do not comply with this Policy must expect disciplinary measures, up to and including dismissal.
IV. Behaviour in the Event of Lack of Clarity
(1) All activities which are fundamentally of competition relevance (i.e. restrict competitors in their freedom to compete or might do so) and are not clearly impermissible activities or permissible activities are in a “grey area”. The requisite cartel-law assessment is then done in the framework of the self-assessment procedure.
(2) For you, this specifically means that whenever you are uncertain about whether your conduct might be problematic from a cartel-law perspective, the following process is to be adhered to:
2. Procedural principles
(1) In the case of the following issues:
- Is the conduct relevant from a cartel-law perspective?
- Can the conduct be classified as generally permissible (white)?
- Is the conduct to be classified as generally impermissible (black)?
- Is a cartel-law self-assessment necessary (grey)?
always consult your managing director.
(2) Insofar as the managing director classifies conduct as impermissible pursuant to cartel law, s/he decrees in a binding manner that the conduct should be refrained from.
(3) If in the managing director’s view a self-assessment is necessary, then s/he puts this through a particular process. All of the information necessary for this purpose is to be provided to him or her.
The planned measure may not be implemented until the approval decision has been made. If no approval is given, then the measure may not be implemented.
If the prerequisites on whose basis the approval was granted change in the course of time, then the self-assessment process is to be conducted again.
Ortlinghaus Anti-Corruption Policy
The Ortlinghaus Group has undertaken to comply with the principles of free and fair competition. For this reason, we expect our employees to comply at all times with the high professional and ethical principles of the Ortlinghaus AG Group and to adhere to and respect all applicable laws and regulations in the respective countries as well as this Anti-Corruption Policy and all other internal Group conduct guidelines.
The Ortlinghaus Group's Anti-Corruption Policy (the "Policy") is intended to show employees what types of behaviour are deemed to be corruption or bribery, how they should behave in relevant situations, how such situations can be prevented, and to whom they can turn in cases of doubt and suspicion. Moreover, this Policy also defines the principles of our relationship with third parties, such as customers, suppliers and business partners.
The Policy can only be effective if it is "lived" and supported by employees. Management members have a role model function in this respect: they have to behave in an ethically impeccable manner and uphold the company's good reputation by demonstrating honesty and fairness on a daily basis.
Of course, this Policy cannot expressly address all types of behaviour. If a situation or type of behaviour is not described in the Policy, then its provisions are to be applied analogously. In the event of suspicions or lack of clarity, employees are obliged to approach their superior, the personnel department or a member of the management without undue delay. Corrupt acts and general behaviour which the Policy prohibits lead to corresponding disciplinary sanctions, up to dismissal, and possibly personal criminal-law consequences. In contrast, employees who refuse to perform such acts or who report such acts in good faith are to be protected from discrimination or retaliation.
We would kindly ask you to read through this Policy carefully, and thank you for your support with which you make a significant contribution to living up to the Ortlinghaus Group's good reputation and reinforcing our position as a valued and sought-after business partner.
1. Key principles of conduct for the prevention of corruption
In principle, in order to prevent corruption and to minimise the risk of conflicts of interest, it is to be ensured that professional life and private life are kept strictly separate. Private and professional interests should not contradict each other; if as an exception a conflict of interests should arise nevertheless, then the superior or another pertinent person is to be informed without undue delay (see number 2. below for possible contact people).
Various aspects and elements of corruption are set out below. All corrupt acts or quasi-corrupt acts described are prohibited to the employees of the Ortlinghaus Group at all times and in any form. If it cannot be determined free from doubt whether a set of facts falls within the behaviour set out below, then the employee must contact a pertinent person without delay.
- The Ortlinghaus Group and its employees strictly adhere to the prohibition against corruption and quasi-corruption. We do not pay or accept any bribes
Corruption and quasi-corruption includes the following behaviour in particular:
Active and passive bribery
Active bribery (or also only "bribery") is when an attempt is made to influence the behaviour of a person by offering him or her an advantage to which that person is not entitled, for that person's benefit or the benefit of a third party, or with the help of such an advantage to induce that person to perform an act in breach of his or her duty.
The counterpart to active bribery is passive bribery, also called "allowing yourself to be bribed". Passive bribery is asking for, allowing yourself to be given or accepting an unwarranted advantage, whether for yourself or for a third party in connection with your activity, i.e. allowing your own behaviour to be influenced by taking or asking for an unjustified advantage.
This Policy forbids and punishes both bribery and allowing yourself to be bribed.
Public-sector and private-sector bribery
Private-sector bribery is the bribing of private subjects such as business partners, other companies in the private sector, employees, shareholders or authorised representatives.
In contrast, public-sector bribery is directed towards bribing a public official. The term includes the members of authorities, civil servants, elected representatives, parliamentarians and soldiers, but can also cover other people too, such as interpreters. Both private-sector bribery and also public-sector bribery is a criminal offence and will not be tolerated.
Finally, when dealing with public officials, increased caution is necessary because even the occasional granting of advantages to these people (e.g. regular invitations to private lunches or giving a football ticket) can be impermissible and a criminal offence, even if this granting is not done in connection with a particular official act (so-called granting or accepting advantages, colloquially "grooming" or "sweetening").
- We do not grant or accept any unwarranted advantages
An element of a corrupt or quasi-corrupt act is that the granted or requested advantage is not justified. This means that minor cases, i.e. low-value or socially usual advantages, do not fall under the corruption prohibition, as a matter of principle. As a fundamental rule it can be stated that gifts or similar tangible or intangible advantages whose value exceeds EUR 50 per year must be rejected. Should this not be possible, the superior or another pertinent person is to be informed without delay and the advantage (insofar as possible) passed on to this person. Even if a promised or requested advantage has a putatively low value, nevertheless it can be the case that this implicitly calls for consideration and an attempt is being made thereby to influence a decision or to establish a dependency relationship. This can be the situation in particular if several advantages are requested or granted within a short period of time.
Should you have concerns as to whether a requested advantage (e.g. a payment or also consideration in an intangible form, e.g. an invitation to a football game) is permitted and legally unobjectionable, ask yourself whether this advantage might be regarded by an outsider as problematic, whether you feel yourself put under pressure as a result thereof, and whether you could justify the acceptance or granting of such an advantage to a superior and colleagues (or even in court). If the doubts cannot be eliminated, please approach the pertinent person (the pertinent people are listed in number 2. below) without delay.
- If at all, the Ortlinghaus Group only makes open and transparent contributions to political organisations
The delimitation between permissible and impermissible contributions to political organisations is problematic, because this is often abused in order to circumvent anti-corruption provisions. For this reason, such contributions may only be made in narrow frameworks and take account of the national legislation of the respective country. All contributions for which consideration is demanded or promised implicitly or expressly (e.g. if an official requests a "donation" to his party for an official act) are forbidden. Management is to be consulted before any planned granting. That body makes the final decision about the granting, type and scope of the planned contribution. If contributions are made as an exception, then these are to be declared clearly and openly in the accounts.
- In connection with our sponsoring activities as well as contributions to charitable organisations, we avoid giving the impression of inappropriate influence
Like contributions to political organisations, making contributions to charitable organisations and sponsoring events and private companies or organisations can be abused for corruption or quasi-corruption. For this reason, all contributions to charitable organisations as well as active and passive sponsoring activities must be notified to the superior or another person in charge and submitted to him or her for their approval. If contributions are made to charitable organisations or grants are made in the framework of sponsoring, then these are to be declared clearly and openly in the accounts.
- Both accepting and offering impermissible gifts are forbidden
"Gifts" are defined as benefits to individuals in the form of money or benefits-in-kind which are not given directly for a financial purpose and not as consideration. Typical courtesy gifts such as pens, calendars or diaries are normally unproblematic. What are problematic and fundamentally impermissible are valuable gifts (e.g. jewellery) and gifts which are regularly repeated (e.g. the regular and unsolicited sending of expensive wine). It is to be noted that valuable gifts to family members and related people, such as paying school fees for a private school for children, are impermissible. Gifts which at first glance are not identifiable as such (such as offering a politically-significant position or a position which is significant in the private sector in return for a particular service) are not legally permitted either.
All gifts whose value exceeds EUR 50 per year or have a corresponding intangible value are to be refused, or, if this should not be possible, are to be handed over and notified to the superior or another person in charge.
- We do not make any "facilitation payments"
"Facilitation payments" are usually small payments which are supposed to accelerate official acts to which there is a legal claim in principle or are supposed to avert unjustified demands. An example of this is the payment of 100 dollars, so that an official issues a permit within two weeks and not only three months, or so that a shipment is not held at customs for months. Facilitation payments are impermissible. However, it is recognised that in extreme cases, particularly in the case of coercion, threat or endangering the health or even the life of employees, facilitation payments are permissible as an exception. In such cases, the amount and the circumstances of the payment are to be notified to a person in charge pursuant to number 2 without undue delay. Moreover, such payments are to be declared accordingly in the accounts.
- We do not accept or issue any invitations (so-called "hospitality") if the aim of these is to influence forthcoming decisions, or if the impression would be given that the invitations are supposed to influence forthcoming decisions
The term "hospitality" encompasses dinner and accommodation invitations and invitations to events (such as football games and opera performances or offering so-called "VIP" tickets). Like with gifts, here too it is unproblematic if these are purely courtesy invitations (e.g. a bread roll for breakfast) and no expectations are established thereby. Depending on the country, the definition of permissible "hospitality" is broader or narrower; as a rule of thumb, anything you can consume within 24 hours is unproblematic (with the exception of expensive beverages and food such as wine and caviar).
Invitations to business meals may only be accepted or agreed if they are voluntary and take place in an appropriate scope which is usual in business or in the framework of the usual business representation obligation. The superior is to be informed in each instance about the scope and frequency of invitations.
Bearing travel and accommodation expenses is only permissible if they are reasonable and are incurred in the framework of a contractually-governed relationship (such as in the case of an instruction) and the costs can or must be taken over in the framework of the expenses rules.
- Business partners, subcontractors and suppliers are chosen on the basis of transparent criteria
Business partners, companies instructed by us and suppliers (list not exhaustive) are chosen on the basis of transparent and reasonable criteria, particularly quality, price and service. No business relations are maintained with people who or companies which are known for actively and/or passively performing corrupt acts, or regarding whom there is a justified suspicion that this is the case.
- We demand that representatives, consultants and agents behave with integrity
Relations with people who or companies which act on behalf of or in the name of one of the members of the Ortlinghaus Group, such as advisors, attorneys, agents or other intermediaries (list not exhaustive), may not be used to pay or receive monetary bribes or other unwarranted advantages. The remuneration of the people named, particularly the fee and commission fees, must be proportionate to the respective service rendered. All business relations are to be properly documented.
2. Procedure in cases of doubt and suspicion
In cases of doubts as to whether a certain kind of conduct is permissible or not, every employee is obliged to contact the superior and ask for advice and/or assistance. If there are justified suspicions that a certain act is impermissible, then the employees are obliged to contact a member of management without undue delay.
Additional central contact persons:
- Mr. Jörg Muhtz
Head of Internal Sales Ortlinghaus-Werke GmbH, Wermelskirchen
Tel. +49 (0)2196 85-312, e-mail: firstname.lastname@example.org
- Dr. Georg Jaster
TIGGES Rechtsanwälte, Zollhof 8, 40221 Düsseldorf
Tel.: +49 (0)211 8687-145, e-mail: email@example.com
3. Breach of the corruption prohibition
Corruption damages free competition and generates substantial risks for all of the parties involved. A corrupt act can have far-reaching civil-law and criminal-law consequences both for the employee concerned and also for the Ortlinghaus Group, in the form of
- monetary fines (in grave cases, these can be in the amount of millions);
- jail sentences;
- compensation lawsuits; and
- other costs (e.g. attorney and court fees).
Depending on the country, further civil-law, criminal-law and administrative-law consequences can be stipulated. It is important to know that ignorance is no protection against punishment, i.e. that even a payment which you do not know is impermissible is classified and punished as corrupt.
Management monitors compliance with this Policy and, in the event of presumed breaches, carries out investigations. In the framework of such an investigation, employees are obliged to disclose all of the facts and documents known to them. Refusal to cooperate in investigation procedures, like all breaches of this Policy (including negligent breaches as well as tolerating breaches by subordinates), result in disciplinary measures up to and including dismissal. The Ortlinghaus Group also reserves the right to report criminal behaviour to the pertinent authorities.
Employees who refuse to commit corrupt or quasi-corrupt acts will be protected against discrimination or retribution measures, even if the Ortlinghaus Group should suffer harm thereby. This also applies for reporting such acts in good faith. Malicious reporting, i.e. reporting putative breaches in the knowledge that the suspicion is unfounded or even reporting with the intention of harming someone, will not be tolerated and will be punished accordingly.