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Results: 4 Answers
Anti-Corruption & Bribery
2.
Definitions and scope of application,
2.1
How is ‘public corruption’ or ‘bribery of a public official’ defined in the anti-corruption legislation?
 
Germany
Corruption offences relating to public officials are governed by Sections 331 and following of the Penal Code. Accordingly, it is a punishable offence for a public official to demand, allows himself or herself to be promised or accept a benefit for the discharge of an official duty, even if he or she does not violate any duties. Conversely, individuals who offer, promise or grant an official a benefit for the discharge of a duty are also punished. If the benefit is promised or granted for the violation of a duty, there will be a harsher punishment.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
2.2
How is a ‘public official’ defined in the anti-corruption legislation? How is a ‘foreign public official’ defined?
 
Germany
German criminal law on corruption differentiates between public officials, European public officials and foreign and international public officials.

The term ‘public official’ is legally defined in Section 11(1)(2) of the Penal Code. Accordingly, public officials are to be considered civil servants or judges under German law, and individuals who are in another official relationship under public law or are otherwise appointed to perform public administration duties at or on behalf of an authority or other body, without prejudice to the organisational form chosen to perform their duties.

Pursuant to Section 11(1)(2a) of the Penal Code, ‘European public officials’ are persons who are members of the European Commission, the European Central Bank, the Court of Auditors or a court of law of the European Union; and officials or other civil servants of the European Union or of a body established on the basis of EU law, or who are responsible for carrying out tasks of the European Union or tasks of a body established on the basis of EU law.

Section 335a of the Penal Code designates judges of foreign or international courts and certain employees of foreign or international authorities as suitable beneficiaries of an act of corruption. It also covers soldiers and certain officials of the troops of non-German state parties to the North Atlantic Treaty stationed in Germany.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
2.3
How is ‘private corruption’ or ‘bribery in the private sector’ defined in the anti-corruption legislation?
 
Germany
Passive corruption and bribery in business transactions are governed by Section 299 of the Penal Code. Accordingly, it is a criminal offence to demand, be promised or accept in an unfair manner benefits in business transactions as an employee or representative of a business enterprise. Conversely, the offering, promising or granting of such a benefit is also punished.

The wording “in an unfair manner” clarifies that injustice is once again the central element of corruption in business transactions. Accordingly, the provision of a benefit in itself is not punishable by law. What is important is that the grantor and the recipient of the benefit agree that an inappropriate decision should be taken on the basis of the benefit.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
2.4
How is ‘bribe’ defined in the anti-corruption legislation?
 
Germany
The colloquial term ‘bribe’ is used in Sections 299, 299a, 299b, 331 and following of the Penal Code under the concept of a ‘benefit’. A ‘benefit’ is any tangible or intangible benefit to which there is no entitlement and which objectively improves the beneficiary’s economic, legal or personal situation. Benefits that are granted to third parties are also covered by this concept.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
2.5
What other criminal offences are identified and defined in the anti-corruption legislation?
 
Germany
In addition to corruption of public officials and business transactions, passive corruption and bribery in the healthcare sector (Sections 299a and following of the Penal Code) are also punishable by law. The bribery of voters and members of Parliament is further sanctioned under Sections 108b and 108e of the Penal Code.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
2.6
Can both individuals and companies be prosecuted under the anti-corruption legislation?
 
Germany
Only natural persons are addressees of German criminal law. In the absence of corporate criminal law, legal entities may be prosecuted only via administrative offence law. Pursuant to Section 30 of the Act on Administrative Offences, companies are accessorily liable for criminal offences and administrative offences committed by their executives. As in many cases it is not an executive, but rather an ordinary employee who bribes or is bribed, it is frequently not the corruption itself that can be considered as a connecting offence. In such cases, however, Section 130 of the Act on Administrative Offences may be applied. Section 130 sanctions the violation of a supervisory duty as an administrative offence.

Under Section 130, management must take supervisory measures to prevent the commission of criminal offences within the company. With respect to corruption, this means that a company must take all appropriate, necessary and reasonable supervisory measures to prevent corruption.

If these supervisory measures are omitted and, as a result, acts of corruption are committed within the company, the company is liable under Section 30 of the Act on Administrative Offences.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
2.7
Can foreign companies be prosecuted under the anti-corruption legislation?
 
Germany
Foreign companies can be prosecuted pursuant to Section 30 of the Act on Administrative Offences only to the extent that:

  • the connecting act constitutes a criminal offence or administrative offence under German law;
  • German criminal law or administrative offence law is applicable; and
  • the legal form of the foreign company is comparable to that of a German legal entity or association of persons.
For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
2.8
Does the anti-corruption legislation have extraterritorial reach?
 
Germany
The German criminal provisions for corruption under Sections 331 and following of the Penal Code claim extraterritorial validity if:

  • the offender is German at the time of the offence; or
  • the offence is committed against a European public official or a foreign or international official within the meaning of Section 335a of the Penal Code (assuming German nationality) (cf Section 5(15) of the Penal Code).
For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB