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Private Sector: s299 et seq. German Criminal Code (StGB) Public Sector: s331 et seq. StGB
Where someone promises or grants the employees or agents Where someone promises or grants a holder of office (i.e. of another company or a third party a financial or other any judge, civil servant or any person holding public office benefit in return for (1) treating him or his company who performs public administration tasks at a public preferentially in relation to other competitors without an authority or other body) a benefit in order to convince him appropriate reason or (2) committing a breach of his duties to perform an illegal act or act within his authority. towards his company. The same applies to employees or agents of a company who ask for or accept such benefits.
The bribe
Is there a presumption that any advantage was given/received corruptly?
No(however, inappropriate or unusual benefits, as well as additional circumstantial evidence such as the position of the recipient or lack of other plausible explanations, may lead to preliminary investigation and finally conviction)
No (however, advantages given / received in connection with the exercise of office constitute a bribe (Sect. 331 et seq. StGB))
Would facilitation payments be caught?
Yes
Yes
Would corporate hospitality be caught?
Yes (depends on the intent and on whether the benefit offered is “socially adequate” i.e. a reasonable benefit which does not have the potential improperly to influence the decision)
Yes (depends on the intent; however, significantly lower threshold than in private sector)
Is there any de minimis?
No
1
Low-value gifts are not subject to criminal prosecution. Generally, in the private sector occasional gifts and usual invitations with a total value of EUR 35 - 60 are considered as adequate.
No
2
Low-value gifts are not subject to criminal prosecution. In the public sector occasional small gifts with a total value of EUR 5 are considered as adequate.
Does the bribe have to be monetary?
No
No
Public officials
Does the offence only apply to bribing public officials?
No
Yes
3
Employees, officers or directors of privately operated companies who perform public functions may also be considered as public officials.
Acts performed outside Germany
Can bribery performed outside of Germany be caught?
Yes
Yes
Does the act also need to be illegal in the foreign country of performance?
No
No
Who can be liable
German National?
Yes
Yes
German company?
Yes
4
Even though legal entities are not subject to criminal prosecution in Germany they can be ordered to pay substantial fines; confiscation of benefits derived from bribery.
Yes
4
Even though legal entities are not subject to criminal prosecution in Germany they can be ordered to pay substantial fines; confiscation of benefits derived from bribery.
German partnership (including limited
liability partnership)?
Yes
Yes
Director of German company?
Yes (if he is implicated in the act of bribery or in cases of neglect of corporate duty to avoid criminal acts)
Yes (if he is implicated in the act of bribery or in cases of neglect of corporate duty to avoid criminal acts)
German company if the bribe is committed abroad by its foreign subsidiary?
Yes
5
Depending on the individual circumstances, as in footnote 4.
Yes
5
Depending on the individual circumstances, as in footnote 4.
Foreign subsidiary of a company incorporated in Germany if the bribe is committed abroad?
No
No
Foreign national / company / partnership if bribe is committed in Germany?
Foreign national: Yes
Foreign company or partnership: Yes
6
As in footnote 4.
Foreign national: Yes
Foreign company or partnership: Yes
6
As in footnote 4.
Foreign national domiciled or “ordinarily resident” in Germany if bribe is committed outside Germany?
Yes (if caught within Germany and not subject to extradition)
Yes (if caught within Germany and not subject to extradition)
Foreign company / partnership if bribe is committed abroad?
No
No
Penalties
Penalties include:
Individuals
— Fines and / or imprisonment (up to five years) in case of conviction. An occupational ban may also be imposed on wrongdoers
Individuals
— Fines and / or imprisonment (up to five years) in case of conviction. An occupational ban may also be imposed on wrongdoers
— Directors, board members and officers: fines (up to EUR 1m) in case of insufficient organisation, instruction and supervision
— Directors, board members and officers: fines (up to EUR 1m) in case of insufficient organisation, instruction and supervision
Companies
Fines (in principle up to EUR 10m – fine may be higher if benefit derived from bribery exceeds EUR 10m – this is the exception rather than the rule)
Debarment of companies from tendering for public contracts
Confiscation of benefits derived from bribery
Companies
Fines (in principle up to EUR 10m – fine may be higher if benefit derived from bribery exceeds EUR 10m – this is the exception rather than the rule)
Debarment of companies from tendering for public contracts
Confiscation of benefits derived from bribery
Defences
Are there any defences available?
No
No
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