Defense Against Espionage and Economic Espionage Charges in Germany

Espionage as such is not defined as a single offense under German criminal law. Depending on the conduct alleged, however, several provisions may apply. These include offenses related to treason and threats to national security under Sections 93 et seq. StGB — such as the disclosure of state secrets or the carrying out of intelligence agent activity. Cybercrime provisions under German law may also be relevant, including:

• Intercepting and accessing data (Sections 202a, 202b StGB)
• Data tampering (Section 303a StGB)
• Computer sabotage (Section 303b StGB)
• Data protection violations (Section 42 of the Federal Data Protection Act, Bundesdatenschutzgesetz, BDSG)
• Extortion (Section 253 StGB)

Liability under Section 23 of the Trade Secrets Act (Geschäftsgeheimnisgesetz, GeschGehG) is also frequently at issue in Germany.

Economic espionage in Germany involves the targeted infiltration of companies or research institutions on behalf of a foreign intelligence service. Companies operating in Germany in sectors such as biotechnology, energy, communications technology, and related fields are particularly affected. The aim is to acquire the know-how of German organizations and gain a competitive or financial advantage for a foreign economy.

In many cases, individuals become implicated without any awareness of wrongdoing. An employee may pass information to a business contact or grant access to internal documents, not knowing that the person they are dealing with is acting on behalf of a foreign intelligence service. Cyberattacks present a particular risk in this context: a staff member who clicks a link in a phishing email may unknowingly install malicious software, giving unauthorized parties access to sensitive company data. Foreign nationals working for German companies are not immune to this risk and may find themselves under investigation in Germany without any criminal intent.

Unlike state-directed economic espionage, corporate espionage (Betriebsspionage) in Germany is commercially motivated and does not involve a foreign intelligence service. Here too, individuals can find themselves under investigation without realizing they have done anything wrong. Someone who unknowingly passes sensitive information to a competitor may face allegations of violating trade secrets under Section 23 GeschGehG. Liability under that provision requires that a prohibition on conduct within the meaning of Section 4 GeschGehG has been breached.

The offense of corporate espionage is specifically addressed in Section 23(1) No. 1 in conjunction with Section 4(1) No. 1 GeschGehG. Suspects are not required to be employed by the company whose secrets were compromised, though employees are disproportionately represented among those investigated in Germany, given the access their role provides. A trade secret for these purposes — as defined in Section 2 No. 1 GeschGehG — is information that:

• is not generally known or readily accessible, and therefore has commercial value;
• is subject to reasonable confidentiality measures by its lawful owner; and
• is the subject of a legitimate interest in secrecy.

This includes data and documents regardless of their form or structure. Criminal liability arises where a person gains access to such a secret through unauthorized access to, appropriation of, or copying of documents, objects, or files.

Section 23 GeschGehG sets out additional variants of the offense and aggravated forms. After reviewing the case file, our criminal defense lawyers will explain precisely what you are accused of under German law and what sentencing range applies in your circumstances. Our team will then develop a defense strategy matched to the specific facts of your case and represent you with commitment — in negotiations and before the German courts.

Section 99 StGB covers the offense of carrying out intelligence activity on behalf of a foreign power — specifically, conduct directed against the Federal Republic of Germany that involves communicating or delivering facts, objects, or findings. Espionage of this kind typically seeks to gather information on political, economic, or security-related matters affecting Germany. A single act meeting the requirements of Section 99 StGB is sufficient to establish liability; ongoing or repeated conduct is not required. Liability extends not only to those who carry out the intelligence activity but also to those who agree to do so, pursuant to Section 99(1) No. 2 StGB.

If you are facing allegations of intelligence agent activity or a comparable espionage-related offense in Germany, contact our criminal defense team without delay. Early legal intervention is decisive in shaping the outcome of criminal proceedings.

Espionage in Germany is no longer confined to human sources or the analysis of open-source material. Digital surveillance through cyberattacks is increasing in frequency and sophistication. Attacks typically take the form of targeted phishing emails, hacking operations, or ransomware campaigns, carried out by individuals or organized groups. The specific criminal provisions under German law engaged — and the applicable sentencing range — depend on the nature of the conduct and the purpose behind it.

Our criminal defense team will explain the charges brought against you under German law and their legal implications, analyze the available evidence, and develop a defense strategy aimed at the best possible outcome. In cybercrime cases in particular, bear in mind that your devices may be seized and examined by IT forensic investigators in Germany. We strongly recommend contacting us as early as possible and following the guidance set out below.

If an investigation has been opened against you in Germany on suspicion of espionage, prompt and considered action is essential. Our criminal defense lawyers will advise you on how to conduct yourself in the event of a search, seizure, or summons under German procedural law — and on the rights available to you as a suspect.

A search of your home, office, or business premises and the seizure of property or assets are compulsory investigative measures commonly used in espionage cases in Germany to locate suspects and secure evidence. These measures are subject to strict legal requirements, though procedural violations by the investigating authorities do occur. To protect yourself and your rights, we recommend familiarising yourself with the guidance our criminal defense lawyers provide on this subject.

Suspects in espionage cases in Germany should also be aware that online searches of devices and systems may be authorized in the course of an investigation, and that telecommunications surveillance is a standard investigative tool in cases involving suspected intelligence activity. If you believe your communications may be or have been monitored, seek legal advice immediately.

In the course of a German criminal investigation, both witnesses and suspects are frequently required by police to make a statement and may be formally summoned for this purpose. If you receive a police summons in Germany, remain calm and contact a criminal defense lawyer before responding. Your lawyer will apply for access to the case file and use that as the basis for advising you and developing a defense strategy.

Do not make hasty or unguarded statements — doing so can seriously damage your position before the German authorities. As a suspect, you have the right to remain silent and are not obligated to comply with a police summons. Seek legal advice on the appropriate course of action before taking any steps.