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Germany

Anti-Bribery and Corruption Laws in Germany

Germany
Source of law German  Criminal Code 
Offence 

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? YesYes
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? NoNo
Public officials  
Does the offence only apply to bribing public officials? NoYes  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? NoNo
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)? 

YesYes
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? NoNo
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? NoNo
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? NoNo