On January 21, 2015, the German Government accepted the draft of a new law combatting corruption which aims at implementing international guidelines to combat international corruption. The new law would expand the prohibition of commercial bribery and tighten the provisions on bribery of foreign public officials. The draft law will transform the binding guidelines of the EU Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector into national law and will create the prerequisites to ratify the EU Criminal Law Convention on Corruption and its Additional Protocol. Germany is one of the few states which have signed but not ratified this Convention. 1. Extension of the provision on commercial bribery To be in compliance with the Framework Decision, the section of the German Criminal Code which prohibits commercial bribery shall be expanded. Currently, section 299 German Criminal Code prohibits that a benefit is offered, promised or given as consideration for an unfair preference in a business transaction. Section 299 German Criminal Code originates from the German Act Against Unfair Competition which it was a part of until 1997. Hence, it follows the so-called “competition model” and mainly protects not the employer or principal of the recipient who is often harmed if his employees or agent agree to accept bribes, but the competition. If an employee in the purchasing department of a manufacturer accepts a bribe and enters into a contract with a supplier whose offer is more expensive than the offer of a competing supplier, he shall be held criminally liable not because he harmed his employer or principal by contracting the more expensive supplier but because he adversely affected the other supplier. For years, there has been a discussion about whether or not the law should be changed or amended to better protect the interests of the employer or principal. The new draft chose the dual approach. In addition to criminalizing an undue preference over the competition, it will also be prohibited to offer, promise or grant a benefit to an employee or agent for him to violate his duties towards his company (or vice versa if the employee or agent demands, allows himself to be promised or accepts a benefit with same intent). It should be mentioned that the (intended) acceptance of the bribe itself, however, would in this connection not constitute a violation of the employees duties, even if internal compliance guidelines prohibit the acceptance of bribes. It is required that the violation of a duty in connection with the purchase of goods or commercial services is intended. If the recipient actually violates such a duty, this may at the same time constitute a breach of trust. 2. Extension of the prohibition of bribery of foreign public officials To date, the definition of public officials in Section 11 German Criminal Code only comprises German public officials. Article 2 Section 1 and 3 of the German Act against International Corruption extends the scope of the prohibition to giving a bribe to a public official as an incentive to the recipient’s violating his official duties (Section 334 of the German Criminal Code) to foreign public officials. Similarly, Section 2 of the German EU Bribery Act extends the prohibition to bribe public officials (Sections 332 and 334 German Criminal Code) to European public officials. The new draft law would tighten the prohibition of bribery of foreign public officials under German law by implementing in particular the following measures:
- The term “public official” would be re-defined to comprise European public officials.
- A criminal liability of European public officials located in Germany would be introduced. Under the new law a European public official who is located in Germany could be held criminally liable if he accepts a bribe. This could for example apply to employees of the European Central Bank (in Frankfurt am Main) or the European Patent Office (in Munich).
- A new Section 335a German Criminal Code would extend the prohibition of bribery of a foreign (non-EU) public official. So far, a violation of the public officials duties was required. Under the new law, it will be sufficient if the benefit is given for the discharge of an official duty.
A copy of the draft law (in German) can be downloaded here.