Anti-Bribery and Corruption Laws in Germany
jurisdiction
| Source of law | ||
|---|---|---|
| Offence | Private Sector: s299 et seq. German Criminal Code (StGB) Where someone promises or grants the employees or agents of another company or a third party a financial or other benefit in return for (1) treating him or his company preferentially in relation to other competitors without an appropriate reason or (2) committing a breach of his duties towards his company. The same applies to employees or agents of a company who ask for or accept such benefits. | Public Sector: s331 et seq. StGB Where someone promises or grants a holder of office (i.e. any judge, civil servant or any person holding public office who performs public administration tasks at a public authority or other body) a benefit in order to convince him to perform an illegal act or act within his authority. |
| The bribe | ||
| Is there a presumption that any advantage was given/received corruptly? | No (however, inappropriate or unusual benefits, as well as additional circumstantial evidence such as the position of the recipient or lack of other plausible explanations, may lead to preliminary investigation and finally conviction) | No (however, advantages given / received in connection with the exercise of office constitute a bribe (Sect. 331 et seq. StGB)) |
| Would facilitation payments be caught? | Yes | Yes |
| Would corporate hospitality be caught? | Yes (depends on the intent and on whether the benefit offered is “socially adequate” i.e. a reasonable benefit which does not have the potential to improperly influence a future business decision) | Yes (depends on the intent; however, significantly lower threshold than in private sector) |
| Is there any de minimis? | No 1 | No 2 |
| Does the bribe have to be monetary? | No | No |
| Public officials | ||
| Does the offence only apply to bribing public officials? | No | Yes 3 |
| Acts performed outside Germany | ||
| Can bribery performed outside of Germany be caught? | Yes | Yes |
| Does the act also need to be illegal in the foreign country of performance? | No | No |
| Who can be liable | ||
| German National? | Yes | Yes |
| German company? | Yes 4 | Yes 4 |
German partnership (including limited liability partnership)? | Yes | Yes |
| Director of German company? | Yes (if he is implicated in the act of bribery or in cases of neglect of corporate duty to avoid criminal acts) | Yes (if he is implicated in the act of bribery or in cases of neglect of corporate duty to avoid criminal acts) |
| German company if the bribe is committed abroad by its foreign subsidiary? | Yes 5 | Yes 5 |
| Foreign subsidiary of a company incorporated in Germany if the bribe is committed abroad? | No | No |
| Foreign national / company / partnership if bribe is committed in Germany? | Foreign national: Yes Foreign company or partnership: Yes 6 | Foreign national: Yes Foreign company or partnership: Yes 6 |
| Foreign national domiciled or “ordinarily resident” in Germany if bribe is committed outside Germany? | Yes (if caught within Germany and not subject to extradition) | Yes (if caught within Germany and not subject to extradition) |
| Foreign company / partnership if bribe is committed abroad? | No | No |
| Penalties | ||
| Penalties include: | Individuals
Companies
| Individuals
Companies
|
| Defences | ||
| Are there any defences available? | No | No |
