Germany: German Anti-Corruption Legislation And Procedure

In this newsletter, we focus on the following topics:

  • The new and tightened German anti-corruption legislation applicable to members of Parliamentary assemblies;
  • Germany's ratification of the United Nations Convention Against Corruption; and
  • the statutory framework for settling criminal cases in Germany, in light of the record fine of USD 100 million, recently paid by an individual defendant to put an end to a corruption trial in Munich.

1. German Legislator Tightens Anti-Corruption Legislation Applicable to Members of Parliamentary Assemblies

On 1 September 2014, an important amendment to German anti-corruption legislation has entered into force. Section 108e of the German Criminal Code (CC), which hitherto penalised providing advantages to members of Parliamentary assemblies in very narrow circumstances only, has been broadened significantly.
The former version of Section 108e CC limited criminal conduct to "buying or selling a vote for an election or ballot" in a Parliamentary assembly in Germany or in the European Parliament. Section 108e para. 2 CC (as amended) makes it now a criminal act to offer, promise, or give an undue advantage to a member of either: the German Federal Parliament (Bundestag), a State Parliament (Landtag), a representative body at the municipal level, the European Parliament, the Parliamentary assembly of international organisations, or the legislature of a foreign country, in order that such a member should act or abstain from acting according to an order or instruction. Vice versa, section 108e para. 1 CC makes it unlawful for a member of the Parliamentary assembly to solicit, accept, or promise the acceptance of an undue advantage for such a purpose. The act will also be criminal if the advantage does not reach the member, but it is passed on to a third party.
The attempt to bribe or be bribed does not by itself constitute a criminal act. However, it should be noted that the mere offer or solicitation of an undue advantage is a criminal act under Section 108e CC. Therefore, very early stages of discussions with a member may be regarded as criminally relevant by a German prosecutor. Moreover, legislative history shows that the term "by order or instruction" is to be construed broadly, so as to encompass any act that aims to encourage the member to comply with the briber's interest.
Obviously, a criminal prohibition defined as broadly as in Section 108e CC (as amended) is likely to conflict with certain legitimate aspects of the practical life of a member of a Parliamentary assembly. Therefore, the German legislator has accepted an important qualification. The advantage must be "undue" to be treated as criminal. Section 108e para. 4 CC states that this is not the case if the advantage is compatible with provisions relevant to the legal status of the member. Beyond that rather narrow wording, legislative history shows that "parliamentary customs" must also be taken into account. Moreover, Section 108e para. 4 CC acknowledges that advantages related to a mandate or a function within a political party are not "undue" for the purposes of criminal liability under Section 108e CC. The same applies to donations permitted by law (e.g. permissible donations under section 44a Abgeordnetengesetz). Finally, it could be argued that advantages given merely to establish or maintain good relationships with members of a Parliamentary assembly are not criminal, so long as no specific act or omission is being influenced or promised. However, caution and strict compliance controls should govern any activity in that field.

2. Germany to Ratify United Nations Convention Against Corruption

From a historical perspective, the amendment of section 108e CC is an important step. It finally paves the way to Germany's ratification of the United Nations Convention Against Corruption, which, among other things, sets standards regarding anti-corruption legislation applicable to members of Parliamentary assemblies. The German government had signed the Convention in 2003. However, for more than ten years, German lawmakers could not reach agreement as to how to implement the Convention's requirements in respect of themselves. Now that Section 108e (as amended) has entered into force, it is expected that Germany will formally ratify the Convention prior to the next G-20 summit in November 2014.

3. Legal Framework of Settling Criminal Cases in Germany

The outcome of a recent corruption trial in Munich, which ended with the defendant's acceptance of a record fine of USD 100 million in return for the termination of the trial, raises the question of the circumstances in which criminal allegations may be settled with German prosecutors and courts.
The German Code of Criminal Procedure (CCP) provides for several statutory avenues to settling criminal cases. They each reflect varying degrees of presumed innocence or guilt, and may come into play at different stages of the criminal proceedings. In this newsletter, we focus on two forms of settlement that both lead to some form of sanction against the accused. In each case, the accused, the prosecutor's office, and the court must have reached a mutual agreement.

  • Section 153a CCP - Settlement without guilty plea. Under section 153a CCP (which was applied in the aforementioned case), the accused does not plead guilty, but nevertheless accepts some sort of sanction. Depending on the individual circumstances, this will consist of, for example, compensating for the damage done, paying a sum of money to a non-profit organisation or the state, doing social work, attempting conciliation or reaching a settlement with the victim, or participating in a social training program. In return, the public prosecutor's office drops the criminal charges, or, if a trial has already begun, the court abandons the trial. There is no statutory limit for a fine under Section 153a CCP, although it should be commensurate with the alleged guilt and the defendant's economic situation. A settlement according to Section 153a CCP is limited to misdeameanours (Vergehen) as opposed to crimes (Verbrechen), which are more serious violations of the criminal law, which include bribery, fraud, embezzlement, and breach of fiduciary duties. It can be made during the preliminary proceedings or after trial has begun. In each case, the court must approve the settlement. If the defendant fulfills the terms of the settlement, he or she will be treated as not guilty, the allegations will not enter his or her criminal record, and he or she may not be charged for the same criminal offence again. If the defendant does not fulfil the terms within a certain time frame set by the prosecutor's office or the court, the prosecutor's office resumes the charges and the trial proceeds. According to its wording, section 153a CCP applies only if the settlement is in accordance with the public interest and the defendant's alleged culpability is not too severe. In practice, further aspects may play a role, such as the length of the proceedings, the public exposure of the defendant during proceedings so far, or his or her previous criminal record. The decision to drop the charges or abandon the trial is not subject to appeal.
  • Section 257c CCP - Settlement with guilty plea. Under section 257c CCP, the court is authorised to deliver a final verdict based on a negotiated agreement with the accused and the public prosecutor's office, regarding the punishment and/or certain procedural issues. Section 257c CCP applies to both misdemeanours and crimes. In general, the agreement will be accompanied by a guilty plea from the accused. The guilty plea may not be a pure formality. It must be consistent with the result of the court's factual determination, it may not be self-contradictory, and it must support the court's reasoning and verdict. The scope and subject matter of the agreement are limited, to preserve judicial independence. The agreement may not determine the punishment in all its particulars (for example, the amount of the fine or the prison term). The accused, the court, and the prosecutor's office may only agree on an appropriate range for the sentence. Moreover, the agreement may not cover the facts that the court is to establish in its verdict, its legal reasoning, or its classification of the acts. However, it is generally acceptable that the agreement should govern certain procedural steps, such as a waiver by the court on taking further evidence, or a waiver by the prosecutor's office or the defendant on requesting the taking of evidence. Since the final outcome of a settlement according to section 257c CCP will be a verdict, the accused will be treated as guilty, and convicted of the offences stipulated in the verdict, and corresponding entries will be made in their criminal record. Moreover, the verdict can be appealed. The appeal can be based on errors of law or procedure, including those that apply to the negotiated agreement itself (for example, duress exercised on the defendant, or incomplete or mistaken advice given to the defendant in respect of his or her rights).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.