Germany

Reviewed April 2015
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PUBLIC OFFICIALS
    Is there an offence of bribing public officials?
    • German criminal law acknowledges several offences concerning bribery of public officials.

      The recently changed and expanded (last quarter of 2014) section 108e of the German Criminal Code (the Code) relates to the bribery of elected officials.

      Sections 331 to 334 GCC relate to the bribery of public officials, persons entrusted with “special public service functions”, judges and soldiers.

      Sections 331 and 332 of the Code deal with the receiving end of the bribery offence: demanding, being promised or accepting benefits/bribes in exchange for the performance of certain duties.

      Sections 333 and 334 of the Code deal with the offering side of the bribery offence: promising or granting benefits/bribes in exchange for the performance of certain duties.

    What is the relevant test for each offence?
    • Section 108e(1) of the Code provides that it is an offence for an elected official to demand, allow himself or herself to be promised or accept a benefit for himself or herself or another person in exchange for exercising his or her mandate on behalf of or on the instruction of the briber.

      Section 108e(2) of the Code contains the offence of offering, promising or granting a bribe to an elected official or a related third party in exchange for exercising his or her mandate on behalf of or on instruction of the briber.

      Parliaments within the meaning of Section 108e of the Code are elected parliaments at every level (local, county, Länder, Federal). In addition, there are some exceptions provided in section 108e(4) of the Code which do not qualify as bribery of an elected official.

      Section 331 of the Code provides that it is an offence for a public official, a person entrusted with special public service functions or a judge to demand, allow himself or herself to be promised or accept a benefit for himself or herself or another person in exchange for the performance of a public duty.

      Section 332 of the Code provides that it is an offence for a public official, a person entrusted with special public service functions or a judge to demand, allow himself or herself to be promised, or accept a bribe for himself or herself or another person in exchange for performing an official act that would violate his or her official duties.

      Section 332(3) of the Code provides that the offender already commits an offence under section 332(1) if he or she accepts a bribe for a future act if he or she has either shown a willingness to violate his or her duties by the act or a willingness to be influenced by the bribe in the exercise of his or her discretion.

      Section 333 of the Code contains the offence of granting a benefit to a public official, a person entrusted with special public service functions, a judge or a soldier. The section provides that it is an offence for anybody to offer, promise or grant a benefit to one of the recipients above or a related third party in exchange for the discharge of a public duty.

      Section 334(1) of the Code contains the offence of granting a bribe to a public official, a person entrusted with special public service functions, a judge or a soldier. This section provides that it is an offence for anybody to offer, promise or grant a bribe to one of the recipients above or a related third party in exchange for the performance of an official act that would violate his or her official duties. Section 334(3) provides that it is also an offence under subsection (1) if the offender promises a bribe for a future act, if the offender attempts to induce the official to violate his or her duties by the act or be influenced by the bribe in the exercise of his or her discretion.

      Under German law, the corruption offences under sections 331-334 of the Code require the person to act with intent. This means that each individual must act intentionally with regard to the elements of the crime in order to be held criminally liable.

      German criminal law only distinguishes between intentional and negligent behaviour. Intent is construed as meaning that the person acts knowingly and wilfully with regard to each element of the crime.

    Can corporates and individuals commit the offence?
    • Under German criminal law, offences can only be committed by natural persons. Therefore only individuals can be criminally liable. However, if the individual is acting on behalf of a corporate body, the corporation may be subject to fines, the confiscation of assets gained as a result of the criminal conduct under the provisions of the Administrative Offences Act or confiscation of other assets.

      The fine alone (without confiscation of assets) can be up to a maximum of €10m.

      At the moment there is a fierce politically-charged public debate about the introduction of corporate criminal liability in Germany. With no foreseeable end to the debate on the horizon there is also no foreseeable outcome yet. But the coalition agreement includes a provision for the introduction of corporate criminal liability, so the Grand Coalition may take action on this point in the near future.

    Does the offence have extra-territorial effect?
    • Offences under sections 332 and 334 of the Code apply to activities outside Germany if a German national commits them or they involve a public official or a person entrusted with special public service functions who is employed in Germany or by the EU. German criminal law generally also applies to offences committed overseas if they are committed by a German national or are committed jointly by co-defendants acting in Germany or the effects of the offence are to the detriment of a German national (legal or natural persons).

      In addition, section 1 of the Act on Combating Bribery of Foreign Public Officials in International Business Transactions 1998 (the Act) extends the scope of Section 334 of the Code to foreign public officials.

      Section 2 of the Act also provides that it is an offence to bribe a foreign Member of Parliament. The section prohibits anyone offering, promising or granting a foreign Member of Parliament an advantage. The advantage must be offered, promised or granted to the Member of Parliament or to a third party in order to obtain or retain an advantage in business for that Member of Parliament or a third party or an unfair advantage in international business transactions. Furthermore, the business or unfair advantage in international business must be in return for the Member of Parliament committing an act or omission in the future in connection with his or her mandate or functions.

    What are the penalties?
    • The maximum penalty for committing an offence under sections 331 to 334 of the Code is up to ten years’ imprisonment.

      The court can also issue a confiscation order against the affected individuals and/or corporations and, additionally, impose fines against both.

      As bribery offences are not summary offences but criminal offences, the penalties are not fixed and are determined by the court on a case by case basis instead.

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    PRIVATE SECTOR
      Is there an offence for bribery within the private sector?
      • Bribery in private business transactions is prohibited under German law. Giving an unfair preference (beyond the limits of what is socially acceptable) to another company in the competitive purchase of goods or commercial services constitutes a bribe. This applies to both domestic and foreign competition (section 299 of the Code).

      What is the relevant test?
      • Section 299(1) of the Code concerns passive bribery in the private sector. An employee or agent commits an offence if he or she demands, allows himself or herself to be promised, or accepts a benefit for himself or herself or another person in a business transaction for an unfair business preference over a competitor.

        Section 299(2) of the Code concerns active bribery in the private sector. It is not allowed to offer, promise or grant an employee or agent of a business a benefit for that employee or a third party in a business transaction. In addition, the bribe must be paid in consideration for the employee providing the person or a third party with an unfair business preference over a competitor.

        Under German law the corruption offences concerning private sector bribery under section 299 of the Code require the person to act with intent. This means that each individual must act intentionally with regard to the elements of the crime in order to be held criminally liable.

        German criminal law only distinguishes between intentional and negligent behaviour. Intent is construed as meaning that the person acts knowingly and wilfully with regard to each element of the crime.

      Can corporates and individuals commit the offence?
      • Under German criminal law, offences can only be committed by natural persons. Therefore only individuals can be criminally liable. However, if the individual is acting on behalf of a corporate body the corporation may be subject to fines, the confiscation of assets gained as a result of the criminal conduct under the provisions of the Administrative Offences Act or confiscation of other assets.

        The fine alone (without confiscation of assets) can be up to a maximum of €10m.

        At the moment there is a fierce politically-charged public debate about the introduction of corporate criminal liability in Germany. With no foreseeable end to the debate there is also no foreseeable outcome yet. But the coalition agreement includes a provision for the introduction of corporate criminal liability, so the Grand Coalition may act in this regard in the near future.

      Does the offence have extra territorial effect?
      • The provisions on bribery in the private sector apply to foreign competition as well as national competition. Generally, German criminal law also applies to offences committed overseas if they are committed by a German national or are committed jointly by co-defendants acting in Germany or the effects of the offence are to the detriment of a German national (legal or natural persons).

      Are there any exceptions or defences?
      • There are no exceptions or defences in relation to the section 299 (private bribery) offences.

        It is important to note that private bribery is only prosecuted at a victim’s request. There is no ex officio duty to prosecute.

      What are the penalties?
      • The maximum penalty for committing an offence under section 299 of the Code is three years imprisonment. The court can also issue a confiscation order against the individuals and/or corporations involved and, additionally, impose fines on both.

        As bribery offences are not summary offences but criminal offences, the penalties are not fixed and are determined by the court on a case by case basis instead.

      This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.