Since the bribery scandals of international magnitude involving German multinational companies like Siemens as well as the local scandals among public officials and politicians, Germany’s enforcement of anti-bribery and corruption law has increased steadily and resulted in significant number of prosecutions and sanctions imposed in domestic as well as in foreign anti-bribery and corruption cases. As of today, Germany is the third largest enforcer of outbound bribery. In 2011, the number of bribery offenses in private sector recorded in Germany increased by no less than 29 percent. Recently, the German Parliament passed a bill raising fines for the companies in connection with bribes from € 1 million to € 10 million.Thus, the compliance with German anti-bribery and corruption law has increasingly become one of the important building blocks of the corporate compliance for the local as well as for the international companies.
Most of the German anti-bribery and corruption provisions are laid down in Sections 331-338 (bribery in public office), 299-302 (bribery in commercial business transactions) and 108b-198e (electoral bribery) of the German Criminal Code (Strafgesetzbuch, “StGB”). The anti-bribing and corruption practices involving EU and other foreign public officials and judges are penalized by the European Union Anti-Corruption Act (EU-Bestechungsgesetz, “EUBestG”) and the Act of Combating International Bribery (Gesetz zur Bekämpfung internationaler Bestechung, “IntBestG”) respectively.
Whom do the anti-bribery and corruption offenses concern?
German anti-bribery and corruption provisions cover offenses in both, public and private sector. The addressees of the relevant provisions are:
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Although companies cannot be subject to criminal liability, they may be punished with fines up to € 1 million under the German Administrative Offense Act (Gesetz über Ordnungswidrigkeiten, “OWiG”) for a corruptive act committed by their representatives or employees. In addition, such acts can lead to a confiscation or disgorgement of the economic advantage of the company gained through the respective bribe (e.g. gross profit or assets of equivalent value). Due to the amendments passed by the German Parliament, the corporate fines are expected to increase from € 1 million to no less than € 10 million in the near future (see Introduction).
Is there any affirmative defense available?
Yes, an affirmative defense exists in connection with the bribery in public office: As long as the public official’s duties are not violated, granting or receiving benefits is not punishable if the principal of the public official has authorized the benefit before or immediately after its receipt.
Where does the German anti-bribery and corruption law apply?
The law generally applies to offenses committed (i) in Germany, (ii) outside of Germany against a German, and (iii) outside of Germany by a German. The EUBestG extends the passive bribery offense to the public officials and judges of the EU and its member states.