Corruption Offences in the German Criminal Code (StGB)
The offences of corruption in the Criminal Code can be divided into two groups based on their respective protective purpose. The official offences of §§ 331 (“accepting benefits”) to § 335a StGB (“foreign and international officials”) protect public confidence in the integrity and, in particular, the non-corruption of the public service. The offences of corruption and bribery in commercial transactions under §§ 299 and 300 StGB form part of the criminal law on economic offences. They serve to protect national and international competition. Special cases of this are bribery and corruption in the health sector (§§ 299a, 299b StGB).
In addition, the StGB regulates bribery of voters (§ 108b StGB) as well as bribery and corruption of elected officials (§ 108e StGB).
Corruption of Public Officials in Germany
The provisions of §§ 331 to 335a StGB regulate official offences are subdivided into acceptance of advantage, bribery, granting of advantage and bribery. According to § 331, para. 1 StGB, a public official or a person with a special public service obligation is punished if they demand, allows themselves to be promised or accepts an advantage for themselves or a third party in the performance of their official duties (acceptance of an advantage). In a mirror image of this, the granting of an advantage is punishable under § 333 StGB. According to this, anyone who offers, promises or grants an advantage to a public official, a person with a special obligation for public service or a soldier of the German Armed Forces for performing their duties or for a third party is punished.
§§ 332 and 334 StGB criminalise bribery and corruption. The difference between accepting or granting an advantage lies in the legality of the underlying official act or omission. Whereas in the case of accepting or granting an advantage, the advantage is related to a lawful official act, bribery and corruption related to a breach of official duties.
Acceptance of an advantage and bribery can only be committed by public officials or persons with a special duty for the service and judges or arbitrators (receiving side). Granting of advantages and bribery can be committed by any person (donor side).
The term “public official” is defined in § 11, paragraph 1, no. 2 StGB. According to this, a person is a public official if they are a civil servant or a judge under German law or have another official relationship under public law. A person is considered a public official if they are appointed in any other way to perform public administrative duties for a public authority or other body or on their behalf. In this sense, for example, editors of public broadcasting corporations are also considered public officials (BGHSt 54, 202 ff.).
It must be considered that the request or offer of advantages is sufficient for the realisation of the offences mentioned. It is not required that the advantage is actually granted. Proof of a specific official act in return is also no longer required.
Penalties and Further Consequences of Corruption in Germany
The offences just described can have serious consequences. Acceptance of an advantage by a public official or a person with a special duty in the public service and, in parallel, the granting of advantage are punishable by a prison sentence of up to three years or a fine (§ 331 (1), § 333 (1) StGB). In the case of judges or arbitrators, the penalty is up to five years imprisonment (§§ 331(2) and 333(2) StGB).
The range of punishment for corruption and bribery is even higher. Bribery is punishable by a prison sentence of six months to five years, in less serious cases by a prison sentence of up to three years or a fine (§ 332 (1) StGB). If the person concerned is a judge or arbitrator, a custodial sentence of one year to ten years is generally imposed (§ 332 (2) StGB). Bribery is generally punishable by imprisonment from three months to five years (§ 334 (1) StGB).
In particularly serious bribery and corruption cases, the maximum sentence may be increased to ten years (§ 335 StGB). As a rule, a particularly serious case exists if the offence relates to a large-scale advantage, if the offender continues to accept advantages for future official acts or if he acts commercially or as a member of a gang. A “particularly serious case” is assumed if the advantage exceeds a value of 50,000 euros.
For civil servants, judges, and persons with special obligations to the service, bribery and acceptance of benefits constitute official misconduct, which often results in disciplinary measures. This may also result in removal from office.
Corruption and Bribery in Commercial Transactions
§ 299 StGB regulates bribery in commercial transactions. According to § 299, paragraph 1, no. 1 StGB, anyone who, in the course of business dealings as an employee or agent of a company, allows themselves to be promised or accepts an advantage for themselves or a third party in return for unfairly favouring another in domestic or foreign competition when purchasing goods or services (corruption) is liable to prosecution. Mirroring this, § 299 (2) no. 1 StGB regulates granting, promising or offering such an advantage (bribery). The purpose of the provision is to protect fair competition.
According to § 299, paragraph 1, no. 2 StGB, anyone who, as an employee or agent of a company, without the consent of the company, demands, allows themselves to be promised or accepts an advantage for themselves or a third party in return for performing or omitting an act in the procurement of goods or services and thereby breaches their duties towards the company (bribery) is also liable to prosecution. The same applies here to bribery, i.e. offering, promising or granting a corresponding advantage (§ 299 (2) no. 2 StGB). The provision serves to protect the economic integrity of the enterprise.
Only employees or agents of a company can commit the offence of bribery (§ 299 (1) StGB). Bribery in business transactions, on the other hand, can be committed by anyone.
Corruption and bribery in business dealings are punishable by a prison sentence of up to three years or a fine. In particularly serious cases, the penalty is increased to a prison sentence of three months to five years (§ 300 StGB). This usually applies if the advantage is of a large scale.
What is Considered an Advantage under Corruption Offences?
An advantage is understood to be any benefit that objectively improves the recipient’s legal, economic or even personal situation and to which he has no legal claim. Money is often offered as a material advantage. However, it can also be discounts, the granting of loans, bonuses, etc. In addition, intangible benefits are also covered, such as honours, career advancement or sexual favours.
Of course, there are also benefits between business partners that do not fall under the offence of bribery in business transactions. Socially appropriate benefits, i.e. those that correspond to what is socially customary, are permitted. The impression must not be created that the acceptance of the benefit obliges or influences the recipient. Simple advertising gifts, tips or invitations to a meal can be unproblematic. Whether a benefit is socially appropriate depends largely on the individual case. The industry also plays an important role. The gratuity must not be objectively suitable to lead to an improper influence on the business decision that impairs free competition.
Caution is particularly advisable in the case of bribes or so-called acceleration payments abroad. Even if such a practice may be common in some countries, this does not mean that it is considered socially acceptable in Germany.