On September 1, 2014 the anti-bribery regulation governing bribery of members of parliament was tightened by the new Sec. 108e StGB (German Criminal Code) entering into force. On February 21, 2014 the members of parliament had already voted for the new regulation, aiming to tighten laws on bribing delegates ,including and in particular the ratification of the United Nations Convention against Corruption (UNCAC). The new Sec. 108e StGB reads as follows: Corruption and bribery of elected officials (1) Who as a member of parliament of the Federation or of the federal states (Länder) demands or accepts the promise of an undue advantage for himself or a third party as a consideration for the performance of an action or omission in relation to his mandate, shall be punished with imprisonment up to five years or a fine. (2) Who offers, promises or grants a member of parliament of the Federation or of the federal state (Länder) an undue advantage for that member or a third party as a consideration for an action or omission in relation to that member’s mandate shall be punished likewise . (3) The following members are equivalent to the members in paragraphs 1 and 2 1. a member of municipal associations, 2. an elected member by universal and direct suffrage of a committee governing a region within a federal state or an administrative body on municipal level, 3. member of the Federal Assembly, 4. member of the European Parliament, 5. member of a parliamentary assembly of an international organization and 6. member of a legislative body of a foreign state. (4) An undue advantage can particularly not be found if the acceptance of the advantage is in line with the legal status of the member and the respective regulations. The following benefits do not represent an undue advantag 1. a political office or a political function as well as 2. donations that are compliant with the Political Parties Act or other applicable laws. (5) In addition to imprisonment for at least six months, the court may disqualify the respective person from his capacity to attain public electoral rights and the right to vote in public affairs. The characteristic element of Sec. 108e StGB is comparable to Sec. 331 et seq. StGB – the conclusion of an unjust agreement (Unrechtsvereinbarung) which generates a relationship between the undue advantage received by or promised to the delegate and the delegate’s action or omission in connection with his mandate. This key element as a new characteristic of the provision against corruption and bribery of elected officials is supposed to cover much more than only the buying and selling of votes. The undue advantage is traditionally understood as any material, immaterial, economic, legal or personal betterment the recipient has no legal entitlement to. In addition, the new regulation also covers benefits for third parties.
Isabell Gernand is a member of Baker & McKenzie's Dispute Resolution Practice Group in Munich. She previously worked in law firms in Washington, DC and Düsseldorf, assisting in corporate litigation, corporate compliance, antitrust and data privacy. Ms. Gernand assists clients in a broad range of corporate litigation and corporate compliance matters including internal investigations, anti-corruption due diligence, risk minimization strategies and related civil litigation.