Germany's recently enacted "Law for the fight against corruption" (the "New Law") has intensified the fight against corruption by broadening in multiple ways the scope of German anti-corruption legislation. The New Law implements various legal acts of the Council of Europe and of the European Union, some of which date back as far as 1999. It entered into force on 26 November 2015. In this briefing we provide an overview of the key provisions of the New Law.
Firstly, the New Law now provides for broader sanctions for corruption of members of European Institutions and of officials and other persons employed by or working for European Institutions. To date, the corruption of such persons has only been punishable under German law where such acts of bribery were aimed at obtaining a particular order in public procurement or a different concrete illegitimate advantage.
In the future, the demanding by, offering to, and granting of bribes to members or employees of European Institutions will be punishable in every case where a bribe is offered, demanded or given in order to influence the bribed person's decision-making in any way. It does not matter whether the desired decision of the bribed person would be in breach of his or her obligations vis-à-vis his or her employer. Thus, small scale bribery of members or employees of the European Institutions is now also punishable in Germany. All corporations who have dealings with members and employees of the European Institutions should be aware of these new provisions.
Secondly, the scope of anti-corruption laws in the private sector in Germany has also been widened. To date, bribery in the German private sector was only punishable where such an act of bribery was aimed at obtaining an illegitimate advantage in competition. The classic example was offering or paying a bribe to a procurement manager in order to obtain a particular order/contract. In the future, demanding, offering or promising a bribe will be punishable – broadly speaking – whenever its purpose is to cause an employee to breach his or her internal obligations vis-à-vis his or her employer. This is the case regardless of whether the payer or offeror of the bribe was seeking an advantage in competition with other bidders or not. In principle, criminal liability may arise for the offeror and for the offeree if an employee demands or accepts a bribe or a promise of a bribe as a consideration for any breach of internal policies. The employer does not even have to suffer a financial disadvantage. This very wide scope has been criticized by legal scholars. It remains to be seen how the German courts will apply the new provision.
Thirdly, the New Law also covers bribery abroad of Germans who act as arbitrators.
Lastly, the New Law provides that corruption in the business context, as well as bribing of employees of foreign or supranational public authorities, will constitute predicate offences for the purposes of the offence of money-laundering.
The New Law also serves to tidy up German anti-corruption legislation in that it brings all German anti-corruption provisions from various minor laws together into the German Code of Penal Law (Strafgesetzbuch). This is to facilitate the application of German anti-corruption legislation for the users. In particular, provisions regarding the bribery of foreign judges and officials, of judges of the International Criminal Court and of foreign members of armed forces are now incorporated into the Code of Penal Law.