Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.
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Results: 4 Answers
Anti-Corruption & Bribery
3.
Corruption and bribery
3.1
How are gifts, hospitality and expenses treated in your jurisdiction?
 
Germany
The granting of benefits is not classified as corruption if the benefits are not granted in expectation of consideration and are socially adequate. As no injustice exists in such cases, gifts, entertainment, invitations and expense allowances may be permitted in individual cases.

The decisive factor is that the gift is both socially customary and generally approved. Against this backdrop, the donation of cash is prohibited.

The assessment of the social adequacy of the benefit depends in particular on the role of the beneficiary, the relationship between the giver and the beneficiary, the procedure of the giver and the nature, value and timing of the gift.

If the beneficiary is a public official, a stricter measure of social adequacy applies. Under no circumstances may a gift convey an impression of the public official’s bias or purchasability towards third parties. The hierarchical position of the beneficiary can also provide clarification on whether a gift is admissible. For example, invitations of representatives are more socially adequate than invitations of simple administrators.

The admissibility of a gift may be contradicted by enduring points of contact between the parties involved. In addition, a clandestine approach by the giver indicates the inadmissibility of the gift.

As far as the admissibility of gifts is concerned, low-value gifts are generally admissible, although different value limits may apply in this regard.

The admissibility of dinner invitations or event invitations depends on the value, the specific relation to the invited person and other particular circumstances of the case.

Other contributions, such as donations and sponsorship, frequently give rise to an unspecified presumption of undue influence on the beneficiary’s decisions. To avoid this, companies should allow such support only on the basis of clear guidelines. In particular, the donation should always be transparent to the public.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
3.2
How are facilitation payments treated in your jurisdiction?
 
Germany
In assessing the admissibility of discounts and benefits, it is important to determine whether the discount is an admissible customer-oriented business strategy or an unacceptable unfair initiation of a relationship.

An unusual level of the relevant benefit and a small variance are arguments against admissibility.

On the other hand, the transparent and properly documented negotiation of discounts regularly raises no concerns.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
3.3
How is bribery through intermediaries and other third parties treated in your jurisdiction? Can those third parties be held liable?
 
Germany
Corruption offences committed with the help of intermediaries are subject to the general rules on perpetration and aiding and abetting corruption. Depending on the contribution to the offence, intermediaries are liable as accomplices, instigators or accomplices.

However, difficulties in establishing the criminal liability of intermediaries arise in the case of bribery in business transactions pursuant to Section 299(1) of the Penal Code.

The use of intermediaries to pay bribes does not avoid criminal liability for the employer. Especially when bribes are paid by the intermediary out of his or her compensation, the employer remains punishable if it was aware of it, while the intermediary can also be held liable for aiding and abetting bribery.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
3.4
Can a company be held liable for bribery committed by management or other employees?
 
Germany
If the perpetrator of the corruption offence is a chairperson, director or manager, the company can be held liable for his or her misconduct under Section 30(1) of the Act on Administrative Offences.

The prerequisite for this is that the manager etc. has committed the act of corruption in the course of his or her managerial functions. The operational nature of the breach of duty required for the determination of a fine is to be affirmed in the case of corruption, since the criminal offences in Sections 299 and 331 and following of the Penal Code affect the business sphere and sphere of activity of the company.

If an employee has committed an act of corruption, the company is not directly liable for this misconduct. Liability can be considered only via Sections 30 and 130 of the Act on Administrative Offences. A fine may be imposed on an undertaking only if a breach of the supervisory duty by a manager is established.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
3.5
Can a company be held liable for bribery committed by domestic or foreign subsidiaries?
 
Germany
A group’s liability under Sections 30 and 130 of the Act on Administrative Offences for corrupt acts by employees of subsidiaries is controversial. The decisive factor is whether the group can be considered the owner of the company. The courts have not issued any relevant rulings to date.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
3.6
Post-merger or acquisition, can a successor company be held liable for bribery committed by legacy companies?
 
Germany
A company is liable for legal violations committed by its legal predecessor under two conditions:

  • The former legal entity is a member of the group of addressees set out in Section 30 of the Act on Administrative Offences; and
  • The new legal entity is either identical to the former legal entity from an economic point of view or its legal successor within the meaning of Section 30(2a), sentence 1 of the Act on Administrative Offences.

According to the jurisprudence of the Federal Court of Justice, economic identity is to be presumed if the liable assets continue to be used in the same or similar manner as previously and constitute a substantial part of the new legal entity’s total assets. It is sufficient that the assets taken over have retained an economically independent position that characterises the new legal entity.

Section 30(2a), sentence 1 of the Act on Administrative Offences covers cases of universal succession and partial universal succession by division. Spin-offs, demergers and transfers of individual rights are not included.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB