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Specific offences and restrictions

Offences

What are the key corruption and bribery offences in your jurisdiction?

The following provisions contain the key bribery offences under German law.

Bribery in public sector
Taking bribes as or giving bribes to a German public official or servant, German judge or arbitrator, International Criminal Court judge, member of an EU court or soldier or member of the German Federal Armed Forces for the performance or omission of an official act that complies with the law (Sections 331, 333, 335, 335a(2) and(3) and 336 of the Criminal Code) constitutes bribery.

Moreover, taking bribes as or giving bribes to a public official for the performance or omission of an official act that violates official duties (Sections 332, 334, 335, 335a(1) and 336) constitutes bribery. These provisions apply not only to German public officials, but also to foreign public officials, foreign judges, judges of international tribunals, members of non-governmental organisations and soldiers (Sections 332, 334 and 335a(1) of the Criminal Code).

In all cases, the official act need not be performed in order to trigger criminal liability. It is sufficient – but also necessary – that a quid pro quo agreement exists between the two parties involved. Moreover, the unlawful benefit of such an agreement need not be granted to one of the persons mentioned above, but can be granted to any other third person.

Aggravated cases of public bribery are typically those in which:

  • the offence involves a major benefit for the bribe taker;
  • the offender continues to accept benefits for performing an official act in future; or
  • the offender acts on a commercial basis or as a gang member with the purpose of continued commission of the offence (Section 335 of the Criminal Code).

Bribery in private/commercial sector
Bribery in business transactions is punishable according to Section 299 of the Criminal Code. This provision punishes any employee or agent of a business who demands, allows himself or herself to be promised or accepts a benefit for himself or herself or another in a business transaction as consideration for unfair preference in an internal or external competitive purchase of goods or commercial services. Similarly, the briber is punishable if he or she offers, promises or grants an employee or agent of a business such a benefit.

The preference is considered unfair if it is not based on reasonable decision making (ie, it is based only on the quid pro quoagreement between the parties).

Section 299 of the Criminal Code was recently expanded (Paragraphs 1(2) and 2(2)). In addition to the abovementioned offences, an employee or agent of a business who, without the company’s consent, demands, allows himself or herself to be promised or accepts a benefit for himself or herself or another in conjunction with a purchase of goods or commercial services – and thereby breaches his or her duties towards the company – will be held criminally liable. The same applies to a person who offers, promises or grants an employee or agent of a business such a benefit while the employee violates his or her duties towards the company in conjunction with a purchase of goods or commercial services. This provision also applies to cases in which the employee violates his or her duties by an act of omission.

Aggravated cases are regularly offences which result in a major benefit for the bribe taker or where the offender acts on a commercial basis or as a gang member with the purpose of continued commission of the offence (Section 300 of the Criminal Code).

Bribery in healthcare sector
In 2012 the Supreme Court ruled that doctors in private practice do not fall under the scope of application of public bribery provisions, since they cannot be considered as public officials according to these provisions; this meant that no criminal liability arose for bribery offences in this sector. As such, in July 2016 the legislature enacted a new law to address this issue.

The new Sections 299a and 299b of the Criminal Code accordingly extend criminal liability to any member of the medical profession who demands, allows himself or herself to be promised or accepts a benefit for himself or herself or another as consideration for unfair preference in an internal or external competition by means of prescribing or acquiring medical equipment or medicaments or allocating patients. The briber is equally punishable under these provisions.

Aggravated cases are regularly offences which result in a major benefit for the bribe taker or where the offender acts on a commercial basis or as a gang member with the purpose of continued commission of the offence (Section 300 of the Criminal Code).

Bribing voters
Section 108b of the Criminal Code extends criminal liability to any person who offers, promises or furnishes gifts or other benefits to another for voting in a particular manner. A person who requests, is promised or accepts gifts or other benefits in exchange for not voting or voting in a particular manner is also punishable under this provision.

Bribing delegates
Section 108e of the Criminal Code extends criminal liability to any person who undertakes to buy or sell a vote in the European Parliament, the German Federal Parliament, state parliaments, the legislative assemblies of municipalities or municipal associations, foreign parliaments or parliamentary assemblies of international organisations.  

Providing a political mandate or function or donating to a political party in accordance with the law does not constitute an unjustified benefit under Section 108e of the Criminal Code.

Hospitality restrictions

Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?

There are no specific laws in Germany regarding the provision of hospitality. In general, providing gifts, meals or the coverage of travel expenses and the like are not exempt from criminal liability. However, certain socially accepted ‘giveaways’ that are low in value and do not follow a regular pattern, for example, would not typically reach the threshold to establish criminal liability. That said, overall there is no rigid statutory threshold, since the benefit for the bribe taker can be any material or immaterial advantage. The only condition is that the bribe taker’s situation is improved, either financially or personally. This encompasses advantages for third parties, including public authorities or legal entities. What constitutes such a benefit for the bribe taker in concreto is determined by the court on a case-by-case basis. With respect to public bribery, a stricter view on hospitality is usually taken in comparison to the realm of commercial bribery.

Under civil service law, public officials and servants are generally prohibited from accepting any gifts, gratifications or benefits from a third party. In the public service there are internal administrative regulations that provide guidelines for employees. With respect to ‘ordinary’ federal state servants, it is commonly stipulated that only gifts below €10 (eg, promotional items such as pens or calendars) are considered acceptable. Further, only one such gift by one donor per year is acceptable. The same applies to hospitality gestures (eg, meals) directed at a public official that are directly connected to the performance of his or her duties and therefore cannot be rejected out of politeness. In such cases it is deemed that the public servant acts in accordance with a general (prior) consent of the employer. In any other case (ie, for gifts up to €50), employees must ask for an individual allowance. However, regarding public officials of German federal states, each state is allowed to establish its own guidelines regarding the maximum limit that a public official is allowed to take in gifts without requesting a special allowance. These rules are established in several different state laws.

Facilitation payments

What are the rules relating to facilitation payments?

Under German law, there is no exemption from criminal liability for granting or receiving facilitation payments to or as a German or European public official, German judge or arbitrator, International Criminal Court judge, member of an EU court or member of the German Federal Armed Forces (Sections 331, 333, 335a(2) and (3) of the Criminal Code).

Bribery of foreign public officials, on the other hand, is punishable only if the future performance of the official act violates official duties (Sections 332, 334 and 335a(1) of the Criminal Code). In such case, pure facilitation payments are also punishable under German law. If the future performance of the foreign public official does not violate official duties (Sections 331, 333 and 335a(2) and (3) of the Criminal Code), pure facilitation payments are not punishable under German law.

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