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Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
Bribery in the commercial sphere
According to Section 299 of the Criminal Code, an employee or agent of a business shall be criminally liable if he or she demands, allows him/herself to be promised or accepts a benefit for him/herself or for a third person on a business transaction as consideration for according an unfair preference to another party in the national or international competitive purchase of goods or commercial services. The same applies to the person who offers, promises or grants such benefit to an employee or agent of a business (Section 299(2)(1)). The preference is considered unfair if it is not based on any reasonable decision-making, but exists only because of the benefit itself.
Section 300 regulates especially serious cases. A case is considered especially serious if the offence relates to a major benefit or the offender acts on a commercial basis or as a member of a group whose purpose is the continued commission of such offences.
The Act of Combatting Corruption has added a subsection to Section 299 that protects the employer´s interests in the loyal and unbiased performance of duties by its employees and agents. A crime exists not just if the benefit leads to an unfair competitive advantage: it exists if the benefit is meant as a consideration to the employee or agent for violating his or her duties towards the business by an act or omission in the purchase of goods or commercial services (Sections 299(1)(2) and (2)(2)). Therefore, it is sufficient for the breach of duty to be connected to the purchase of goods or commercial services; a distortion of the competitive process is not necessary. The issue of duty to the company can arise as a result of either law or contract. Thus, an employee who accepts a benefit from a supplier in consideration for ignoring the company’s internal rule to invite an offer from a competitor for comparison is liable under Section 299, even if the supplier’s offer was in fact the best offer available on the market.
In addition to the adoption of this ‘employer model’ (Geschäftsherrenmodell), the 2015 Act of Combatting Bribery has expanded criminal liability for money laundering (Section 261 of the Criminal Code). Consequently, active as well as passive bribery in the commercial sphere is also a predicate offence for money laundering when committed on a commercial basis or as a member of a criminal association. German investigating authorities and courts frequently assume that this requirement is met in cases involving companies.
Bribery in the healthcare sector
On March 29 2012 the Grand Criminal Panel of the German Federal Court ruled that physicians who work in private practice are neither public officials nor agents of the statutory health insurance (BGH, Beschl v 29.03.2012 – GSSt 2/11). Therefore, the granting and receiving of benefits to influence their conduct as doctors can be considered neither bribery in the public sector in terms of Sections 331 to 334 of the Criminal Code, nor bribery in the commercial sphere in the meaning of Section 299.
In response, the German Parliament adopted the Act of Combatting Corruption in the Healthcare Sector. As a result, every healthcare professional who, in connection with the exercise of his or her profession, requests, receives or accepts the promise of a benefit for him/herself or a third person in consideration for preferring somebody surreptitiously with respect to the procurement, prescription or dispensing of drugs and medical products, or the referral of patients, is criminally liable (Section 299a). The same applies to the person who offers, promises or grants the benefit (Section 299b).
In addition, Section 300 of the Criminal Code, which provides criminal liability for especially serious cases of bribery in the commercial sphere, also provides criminal liability for especially serious cases of bribery in the healthcare sector.
Bribery in the public sector
The term ‘public official’ is defined in Section 11(1)(2) of the Criminal Code. It encompasses civil servants and judges, as well as anybody else who carries out public official functions or has otherwise been appointed to serve with a public authority or other agency, or has been commissioned to perform public administrative services. The organisational form chosen to fulfil such duties does not matter. Therefore, employees of state-owned or state-controlled companies may be included if those companies operate as an extension of the state.
The Act on Combatting Bribery broadened the scope of Germany´s law on bribery in the public sector significantly. In addition to domestic public officials, the current law concerns EU officials, as well as certain foreign and international public officials (Section 335a of the Criminal Code). The term ‘EU public official’ includes not only members of the EU institutions such as the European Commission and the European Central Bank and all public officers, but also persons only assigned by the European Union. Of even greater practical importance is the new provision attached to Section 335a of the Criminal Code. This provision adjusts criminal liability to domestic officials in all other countries (EU and non-EU states) and is interpreted very broadly. In addition, Section 5(15) stipulates almost universal jurisdiction. This means that it is sufficient for the perpetrator to be a German citizen at the time of the offence for Sections 331 to 337 to apply.
To be held criminal liable for bribery in the public sector in its basic form, it would be sufficient for a public official or a person entrusted with special public service functions demand or allow him/herself to be promised, or accept, without approval by his or her superior, a benefit for him/herself or for a third person for the performance of an official duty (Section 331 of the Criminal Code). The same liability applies to the person who offers, promises or grants the benefit (Section 333).
The qualified offences of granting and accepting bribes under Sections 332 and 334 require a more specific – expressed or implied – agreement of wrongdoing than for basic bribery. Thus, the benefit granted or accepted must be meant as a consideration for the fact that an official act has been or will be performed whereby official duties have been or will be violated. In those cases, the public official (Section 332), as well as the ‘donor’ (Section 334) can be held criminally liable. ‘Especially serious cases’ are defined in Section 335.
Furthermore, misdemeanours under Sections 332(1) and 334 of the Criminal Code (both in conjunction with Section 335a) are predicate offences for money laundering.
Bribery in the political sphere
Bribery in the political sphere is regulated by Section 108e of the Criminal Code. The German legislator updated this section in 2014 to implement the provisions of the Criminal Law Convention on Corruption by the Council of Europe and the UN Convention against Corruption. Nowadays, members of certain national, EU or international parliaments, as well as members of a foreign legislative body, who demand or allow themselves to be promised, or accept, an unfair benefit for themselves or a third person in consideration for the execution of an act or omission by order while exercising their mandate are criminally liable (Section 108e (1)). The same liability applies to the ‘donor’ (Section 108e (2)).
Compared to the previous legal situation, the current law covers not only the buying and selling of votes, which was difficult to prove by investigation authorities, but also influencing actions, such as in faction meetings or working committees, as well as non-material benefits. Accordingly, Section 108e is expected to have a deep impact on all lobbying activities.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
Since there are no specific laws in Germany regarding gifts or the provision of hospitality, determining where hospitality ends and where corruption starts is particularly challenging. The German laws on bribery and corruption cover, in principle, any kind of advantage to which the recipient is not legally entitled. Therefore, the term ‘benefit’ that is generally used can be defined as any material or immaterial advantage that improves the position of its target in terms of his or her financial, legal or personal situation. This can include gifts, meals or entertainment of low value or small travel expenses. An exception is made only in cases where the advantage is “acceptable” because it is “socially adequate”. To distinguish socially adequate from corrupt behaviour, the federal authorities have turned away from fixed amounts of money to examine the individual circumstances of each case. Decisive parameters may be the nature and worth of the promised benefits, the status of the person invited, the relationship between the parties, the apparent objective of the provided benefits, and whether the transactions are handled transparently or secretly and their frequency. The view on gifts and hospitality is usually stricter in the public sector than in the commercial sphere.
What are the rules relating to facilitation payments?
In principle, granting or receiving facilitation payments leads to criminal liability. There is one exception in case of bribery of public officials if there is no violation or intended violation of official duties through the performance or future performance of the public official (Sections 331, 333 and 335a).
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