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
5.
Enforcement
5.1
Can companies that voluntarily report anti-corruption violations or cooperate with investigations benefit from leniency in your jurisdiction?
 
Germany
There is no leniency programme with respect to corruption offences. Disclosure of violations and cooperation with investigating authorities can nevertheless be worthwhile for a company. For example, administrative offence proceedings initiated against the company may be discontinued for reasons of expediency pursuant to Section 47 of the Act on Administrative Offences.

If the proceedings are not discontinued, the public prosecutor’s office has several options to reward the company’s willingness to cooperate. It may take cooperation into account when calculating the fine in accordance with Section 30 in conjunction with Section 17(3) of the Act on Administrative Offences; or, in accordance with Section 30(4) of the Act on Administrative Offences, it may even refrain entirely from issuing a fine and instead merely skim off the economic advantage obtained through corruption.

Even in the case of extensive cooperation, however, the company is not entitled to such relief. Therefore, disclosure should be considered well in advance.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
5.2
Can the existence of an anti-corruption compliance programme constitute a defence to charges of anti-corruption violations?
 
Germany
The prevailing view is that an anti-corruption compliance programme that meets the respective operational requirements reduces liability. The reason for this is that the company or its management has not violated its supervisory duties under Section 130 of the Act on Administrative Offences.

In practice, however, it is difficult to determine retrospectively which supervisory measures a company was obliged to take. The fact that corruption has occurred despite the existence of a compliance programme may lead courts and public prosecutor’s offices to presume prematurely that the compliance programme did not meet the company’s operational requirements and it thus may not serve to reduce liability.

Such a conclusion is out of the question, however, because the assessment should be based on a fictitious view prior to the act of corruption. If the anti-corruption compliance programme satisfies the operational requirements in a fictitious ‘ex ante’ view, the fact that corruption nevertheless occurred should not affect the ability of the compliance system to reduce liability.

If an appropriate compliance programme is maintained, a company will not normally be liable. Should liability be affirmed in an individual case, the existence of a compliance system programme may at least have an advantageous effect of reducing the fine. However, there is no guarantee with regard to appropriate handling.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
5.3
What other defences are available to companies charged with anti-corruption violations?
 
Germany
A company’s liability for corruption violations is based on breach of its supervisory duty within the meaning of Section 130 of the Act on Administrative Offences, for which the company is liable under Section 30 of the Act on Administrative Offences. To avoid liability, the existence of a breach of supervisory duty must therefore be refuted. Where a supervisory measure has been omitted, it must be demonstrated that the supervisory measure in question either was inappropriate to prevent the act of corruption or was not necessary or reasonable.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
5.4
Can companies negotiate a pre-trial settlement through plea bargaining, settlement agreements or similar?
 
Germany
According to German law, under Sections 46 and 71(1) of the Act on Administrative Offences in conjunction with Section 257c of the Code of Criminal Procedure, it is possible to negotiate an agreement during the fine proceedings. The company may reach an agreement with the public prosecutor’s office that an accommodation by the company (eg, in the form of a confession) will be rewarded with discontinuation of the proceedings or the prospect of an upper or lower limit in the assessment of the fine. An agreement on the exact amount of the fine is inadmissible, however.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
5.5
What penalties can be imposed for violations of the anti-corruption legislation? Can non-exhaustive penalties be imposed for such violations (eg, exclusion from public procurement, exclusion from entitlement to public benefits or aid, disqualification from the practice of certain commercial activities, judicial winding up)?
 
Germany
Natural persons who commit a corruption offence can be sanctioned with a fine or imprisonment (up to five years).

Companies held responsible for acts of corruption under Section 30 of the Act on Administrative Offences may in particular be subject to monetary fines. Pursuant to Section 30(2)(1) of the Act on Administrative Offences, ‘association fines’ may amount to up to €10 million; while fines imposed pursuant to Section 30(3) in conjunction with Section 17(4) of the Act on Administrative Offences may be considerably higher.

In addition, as with natural persons, it is also possible to confiscate the proceeds of the offence.

The ‘naming and shaming’ method of sanctioning can be particularly sensitive for companies. Sections 3 and 2(1)(3) of the Competition Register Act provide that final decisions imposing fines pursuant to Section 30 of the Act on Administrative Offences are to be entered in the Competition Register. As contracting authorities are obliged to consult the register, registration of the company may exclude it from public procurement procedures.

For more information about this answer please contact: André-M. Szesny from Heuking Kuehn Lueer Wojtek PartGmbB
5.6
What is the statute of limitations to prosecute anti-corruption violations in your jurisdiction?
 
Germany
Pursuant to Section 78(3)(5) of the Penal Code, corruption offences expire three years after the end of the offence.

The limitation period with respect to the association fines imposed on companies pursuant to Section 30 of the Act on Administrative Offences is governed by Section 31(2)(1) of the Act on Administrative Offences. The limitation period for prosecution is three years after the end of the last business-related act of corruption committed in the company.

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