Fine: Should liability insurance or employer cover it?

Since the amendment to the Genetic Engineering Safety Ordinance (GenTSV) in 2019, the statement has been circulating in laboratories that the fine provisions under Section 33 GenTSV no longer apply only to operators, but to all responsible persons, including project managers (PL) and biological safety officers (BBS). Accordingly, many PLs and BBS are asking themselves whether they or their employer should take out liability insurance on their behalf, and whether the employer can cover such liability insurance for them in the event of a fine being imposed on the PL or BBS.

From a legal perspective, according to attorney Dr. Bita Bakhschai from Speyer in the NBS chat, it is impossible for liability insurance to cover fines. Indeed, only damages to third parties can be covered by liability insurance, not fines directed at the driver himself. This is similar in road traffic. There, too, liability insurance cannot be taken out against a fine ("ticket"). Therefore, it makes no difference whether the employer is a legal entity under private law, which can also take out business liability insurance for employees, or a legal entity under public law, which is generally subject to state liability through the federal states. In no case is a fine covered by this, so liability insurance does not need to be taken out for this reason.

With regard to the question of whether the employer can pay a fine or penalty for the employee, the answer from attorney Dr. Bita Bakhschai from Speyer in the NBS chat is also clear. In such a case, the employer could potentially be liable for prosecution (keyword: obstruction of justice). Indeed, the employer's assumption of a fine can constitute obstruction of justice, in the sense of obstruction of enforcement according to Section 258 Paragraph 2 of the German Criminal Code (StGB), if there is a constituent, unlawful, and culpable predicate offense (criminal offense) under the Genetic Engineering Act (GenTG). A fine imposed for a "mere" administrative offense lacks a criminal offense, so in this case, obstruction of justice in the sense of obstruction of enforcement does not exist. However, in this case, the employer's assumption of fines is taxable wages for the employee, which are subject to wage tax according to the Federal Fiscal Court (BFH).