Definition and Origin of ‘Ethical’
The English word ‘Ethical’ is derived from the ancient Greek term ‘ēthikos,’ which means ‘pertaining to customs.’ In German, this translates to ‘ethisch.’ In a legal context, ‘Ethical’ describes actions, norms, and principles that refer to morally justifiable, responsible, and societally accepted behavior. Legally relevant facets of ‘Ethical’ are often addressed within codes, laws, international agreements, or internal company guidelines.
Distinction from Similar Terms
‘Ethical’ differs in substance both from ‘legal’ (lawful) and from ‘moral’ (moral). While ‘legal’ focuses on regulations and statutory texts, ‘Ethical’ refers to supralegal principles that are not necessarily codified in law but often form the basis of legal norms or serve as interpretative aids within legal systems.
Legal Classification of ‘Ethical’
Ethical Principles in Law
Ethical principles can be found in many areas of law as general maxims of conduct, such as the principle of good faith (§ 242 BGB), good morals (§ 138 BGB), and in international contract law (‘good faith’).
Good Faith
The term ‘good faith’ describes the expectation that contracting parties act honestly, loyally, and considerately when executing and interpreting agreements. This legal principle is closely linked to ‘Ethical’ as it demands morally acceptable behavior within legal frameworks.
Good Morals
Legal action is considered ‘ethically inadmissible’ if it violates good morals. The legal concept of ‘good morals’ serves as a corrective for gaps in the law and protects against abuse of rights.
Legal Codification of Ethical Standards
National Legislation
In German and European law, ethical requirements are codified, among other things, in labor law, medical law, environmental law, and commercial criminal law. These regulations cover, for example, anti-discrimination (§ 1 AGG), ethically mandated working conditions, or environmentally conscious behavior.
International Agreements
Global standardization efforts, such as the UN Global Compact, the OECD Guidelines for Multinational Enterprises, and ILO standards, include minimum ethical requirements for corporate and governmental conduct. These international agreements are increasingly being integrated into national law and reflect the intersection of ethics and law.
Internal Corporate Ethics Guidelines
Many organizations and companies issue their own codes of ethics (‘Code of Ethics’), which supplement or specify compliance regulations. These codify ethical behavior and serve to monitor, supervise, and sanction non-ethical activities, often with legal consequences under labor and corporate law.
Legal Relevance of Ethical Norms and Sanctions
Sanctions for Violations
Actions considered unethical can lead to legal consequences, such as contesting contracts (due to immorality), fines, claims for damages, disciplinary action, or civil law sanctions. In addition, ethical assessments influence the interpretation of indeterminate legal concepts.
Compliance and Liability
Many companies are required by various legal provisions to make ethical compliance tangible. Disregarding ethical guidelines can create liability risks, especially in light of the Supply Chain Act, anti-corruption law, or Corporate Social Responsibility (CSR).
Significance of ‘Ethical’ in Selected Areas of Law
Commercial Law
In commercial law, ‘Ethical’ plays a role in combating corruption, in antitrust law, and in labor law. Here, ethical standards form the basis for regulatory requirements.
Medical Law and Bioethics
In medical law, ethical principles serve as a guiding framework, for example in the context of disclosure obligations, life-saving measures, or research involving or conducted on humans. Central points of reference here are human dignity, autonomy, and care.
Data Protection and Artificial Intelligence
With digitalization, ‘Ethical’ is increasingly coming into focus in legislation, for example in the context of the General Data Protection Regulation (GDPR), artificial intelligence, and algorithmic ethics. The development, implementation, and use of digital technologies must comply with minimum ethical standards.
Development and Perspectives in a Legal Context
The understanding of ‘Ethical’ is subject to ongoing societal, cultural, and technological changes. Modern case law and legislation increasingly rely on ethical considerations to strengthen the protection of fundamental rights, promote sustainable business practices, and foster social justice.
Conclusion
‘Ethical’ is a central concept in law, whose significance goes far beyond individual moral assessments. Ethical principles are widely codified in law or exert an indirect influence on statutes, regulations, and contractual relationships. Observance and implementation of such standards are today an integral part of responsible conduct at the individual, corporate, and governmental level.
Frequently Asked Questions
What legal framework conditions must be observed when introducing ethics guidelines in a company?
When introducing ethics guidelines in companies, various legal framework conditions must be considered. First, it must be ensured that these guidelines comply with applicable laws, such as labor law, data protection law (especially GDPR), the General Equal Treatment Act (AGG), and, if applicable, industry-specific regulations. Ethics guidelines must not contain provisions that violate statutory obligations or employees’ protective rights. In addition, the participation rights of the works council under the Works Constitution Act (BetrVG) and the rights to a hearing or consent must be observed when implementing the guidelines. Companies should ensure that the principles of proportionality and fair procedure are upheld in control or sanction mechanisms. Finally, appropriate communication and instruction of the workforce—if necessary, also in different languages—is legally necessary to ensure the effectiveness and legal certainty of the ethics guidelines.
How should ethical violations be handled from a legal perspective?
Ethical violations in companies must be handled in compliance with labor law provisions. Depending on the nature of the violation, labor law measures such as warnings or dismissal, civil liability issues, and possibly criminal consequences may be considered. The principles of proportionality, the right to be heard, and adherence to a structured, traceable investigation process must always be observed. Companies are also obliged to ensure whistleblower protection, in particular pursuant to the Whistleblower Protection Act (HinSchG). Violations of internal ethics rules can also have an impact on managing directors and board members with regard to their compliance obligations and director’s liability.
To what extent are codes of ethics legally binding?
Codes of ethics are generally considered ‘soft law’ and therefore do not initially have the same direct legal binding force as laws or collective agreements. Nevertheless, they can be made legally effective and binding within a company through reference in employment contracts, established company practice, or works agreements. Compliance with them can be contractually required, especially if breaches of the code also constitute legal violations or breaches of contract. Furthermore, codes of ethics can serve as interpretative aids for the conduct of employees and management and may be indicative of care and compliance in legal disputes.
What statutory reporting obligations exist in connection with unethical conduct?
Various statutory reporting obligations arise in connection with unethical conduct. For example, the Whistleblower Protection Act (HinSchG) requires companies to establish internal reporting offices for hints of legal or ethical violations. Certain violations, especially those with criminal relevance such as corruption, fraud, or money laundering, are also subject to external reporting obligations to authorities or the public prosecutor. For certain professional groups, such as in the financial sector, there are additional reportable matters, for example, under the German Banking Act (KWG). Failure to fulfill statutory reporting obligations can result in severe sanctions for companies and responsible individuals.
What role do data protection and personal rights play in internal investigations into ethical violations?
Internal investigations into suspected ethical violations are subject to strict data protection requirements, in particular the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). Companies may only collect, process, and store personal data that is strictly necessary for clarifying the specific suspicion (principle of data minimization and purpose limitation). The rights of the data subject, such as the right to information, rectification, or erasure, must be safeguarded. In addition, the requirements for the protection of personal rights apply: investigative methods such as surveillance may only be used under very limited circumstances and never without cause. The works council and data protection officers must generally be involved before such investigations begin.
How is the legal responsibility of company management in the area of corporate ethics regulated?
The company management (e.g., managing director, board) is legally responsible for ensuring compliance with laws and ethical standards within the company (compliance obligation). According to § 93 para. 1 AktG and corresponding provisions in the German Limited Liability Companies Act (GmbHG), bodies of a company must not only ensure compliance with legal requirements but also implement effective compliance management that includes ethical conduct. Omission or inadequate action can lead to personal liability of executives, especially in cases of organizational fault or if there is evidence of so-called supervisory fault.
What legal requirements exist for the documentation and monitoring of ethical measures?
Ethical measures and their implementation must be documented and made traceable from a legal point of view, especially to prove compliance with legal requirements and internal company rules in case of dispute or audit. Documentation includes, for example, evidence of training, information events, established reporting offices and their effectiveness, as well as measures taken in case of violations. Monitoring is typically carried out through regular audits, reports, and reviews of compliance with ethics guidelines. Depending on the industry, supervisory requirements (e.g., BaFin, Medical Devices Act) may entail special documentation obligations, the breach of which can be sanctioned with fines and other penalties.
