Primary foreign anti-bribery legislation and enforcement agencies
German Criminal Code (GCC)
Prohibits bribery of foreign and domestic public officials, delegates and members of parliament, as well as taking and giving bribes in commercial practice
Investigating and prosecuting agency: Any public prosecution service (nota bene: in Germany, public prosecution services operate at the state level)
Domestic/European bribery (private to public; sections 331-338 GCC)
A person is guilty of domestic bribery if:
- they offer, promise or grant a benefit
- to a (European) public official,1 a person entrusted with special public service functions or a soldier in the Armed Forces
- for that person or a third person
- for the discharge of a duty (s 333 GCC) or for the fact that he performed or will in the future perform an official act and thereby violated or will violate his official duties (s 334 GCC).
Two defenses to this offense:
- Taking into account its value and the accompanying circumstances, the benefit may be “socially acceptable.”
- The competent public authority, within the scope of its powers, may either previously authorize the acceptance of the benefit by the recipient or it may do so upon prompt report by the recipient.
Domestic bribery (private to private; sections 299-301 GCC)
A person is guilty of domestic bribery if:
- as an employee or agent of a business, he or she demands, allows himself or herself to be promised or accept (s 299 para 1), or offer, promise or grant an employee or agent of a business (s 299 para 2)
- a benefit (for himself or herself or a third person)
- in a business transaction as consideration2 for according an unfair preference
- in the competitive purchase of goods or commercial services.
- without the prior approval of the company
- demands, allows himself or herself to be promised or accept a benefit for himself or herself or a third person (s 299 para 1), or offer, promise or grant an employee or agent of a business a benefit for himself or herself or for a third person (s 299 para 2)
- as consideration for an act or omission of an act that violates the duties towards the company.
Bribing Foreign Public Officials (s 335a GCC):
Section 335a GCC broadens the scope of section 334 GCC to include the offering, promising or giving of bribes as an incentive to the recipient’s future violation of his official duties as a foreign public official.3 However, the scope of section 333 GCC is merely broadened so as to include the offering, promising or granting a benefit to judges and civil servants of the International Criminal Court of Justice for the discharge of their duty.
Bribery of foreign delegates / members of parliament (s 108e GCC; s 2 of the Law against International Bribery)
Section 108e GCC and Section 2 of the Law against International Bribery establish specific anti-corruption regimes that target at minimizing corrupt practices vis-à-vis members of (domestic and foreign) legislative bodies and/or parliamentary assemblies of international organizations.
New: Corruption in the healthcare sector (s 299a, b)
On June 4, 2016, sections 299a and 299b German Criminal Code came in to force. The two provisions extend German anti-corruption legislation to large parts of the country’s healthcare sector.
The new provisions close a gap which was identified by the German Federal Court of Justice in a decision of March 29, 2012. The court held that the then existing anti-corruption provisions of the German Criminal Code did not to apply to independent health practitioners. Independent health practitioners neither qualified as “employee or agent” under the provisions outlawing commercial bribery (Section 299 German Criminal Code), nor were they “public officials” under the laws prohibiting public bribery (Section 331 German Criminal Code). Yet, politically, the criminal liability of Healthcare professionals was deemed appropriate.
Under the new section 299a German Criminal Code Bribery it constitutes a criminal offense if a healthcare professional in relation to his occupation, demands, allows himself to be promised or accepts a benefit for himself or another for according an unfair preference in domestic or international competition when prescribing or procuring pharmaceutical products, or when introducing patients or examination material. Vice versa, those who offer, promise or grant such a benefit to a healthcare professional under these circumstances may be held criminally liable pursuant to section 299b German Criminal Code.
Penalties – Criminal and/or Civil liability
For an individual
- Imprisonment not exceeding three years or a fine (s 299, 299a, 299b 331 and 333 GCC)
- Imprisonment from three months (six for public officials) to five years (s 332 and 334 GCC; s 108e GCC)
- In aggravated cases, imprisonment of up to 10 years or a fine (s 300, 335 GCC)
- Fines (of up to 24 months) are determined at a daily rate and depend on the perpetrator’s income.
For the company / legal entity
- German law does not recognize criminal corporate liability.
- However, administrative monetary fines may be imposed directly on companies if its representatives or representative bodies commit a criminal or administrative offense, and the company hereby breaches a company duty or otherwise benefits by illegal means (s 30 German Administrative Offence Act).
- Equally, a court may order forfeiture of the acquired benefits (s 73, 73a GCC, s 29a German Administrative Offence Act). This may result in an obligation to release all assets resulting from the commission of the unlawful act.
1 Pursuant to Section 11 GCC, a “public official” is anyone who: serves as civil servant or judge; otherwise carries out public official functions; otherwise has been appointed to serve with a public authority or another agency; or has been commissioned to perform public administrative services regardless of the organizational form chosen to fulfil such duties. Likewise, a “European public official” is anyone who: is a member of the European Commission, the European Central Bank, the European Board of Auditors, or a court of the European Union; is a person serving as civil servant to the European Union or is otherwise employed by the European Union or by any agency created in accordance with European Union primary law; is otherwise commissioned to carry out functions of the European Union or functions of an agency that has been created in accordance with European Union primary law.
2 The defense of “socially acceptable” benefits equally applies to domestic bribery as “socially acceptable” benefits are not promised “as consideration” for according an unfair preference.
3 “Foreign public officials” include public officials of a foreign state (including public officials of a member state of the European Union) or an international organization; any person commissioned to carry out a public function of a foreign state or an international organization; soldiers of a foreign state or international organization.
This list is to be used as a guide only. It is intended to provide high-level information regarding the primary laws in the specified countries in relation to anti-bribery and anti-corruption laws. Please refer to the relevant legislation for detailed information and to ensure that the information contained in this guide is up-to-date, and refer to the relevant Baker McKenzie contact for the jurisdiction for specific advice.