Anti-Corruption & Bribery Comparative Guide
|Author:||Dr. André-M. Szesny|
|Profession:||Heuking Kuehn Lueer Wojtek PartGmbB|
1 Legal and enforcement framework
1.1 Which legislative and regulatory provisions govern anti-corruption in your jurisdiction, from a regulatory (preventive) and enforcement (criminal) perspective?
In Germany, the fight against corruption is primarily governed by criminal law. The acceptance of benefits, passive corruption, granting of benefits and bribery are punishable under Sections 331 to 335a of the Penal Code. However, these criminal offences relate only to corruption involving public officials. Sections 299, 299a and 299b of the Penal Code govern criminal offences sanctioning corruption in business dealings and in the healthcare system. In addition, bribery of voters and members of parliaments (not only the Federal Parliament, but also state and local parliaments) is sanctioned under Sections 108b and 108e of the Penal Code.
In addition to the repressive regulatory provisions listed above, there are few preventive, corruption-specific provisions. Standardised rules to prevent corruption exist for the public sector only. In the healthcare and private sectors, obligations are mainly organisational. For example, associations of social health insurance-accredited physicians and statutory health insurance funds are obliged, under Sections 81a(4) and 197a(4) of the Social Code, to set up bodies to combat misconduct in the healthcare system. Similarly, companies are required to implement compliance measures to prevent corruption under Sections 30 and 130 of the Act on Administrative Offences.
1.2 Which bilateral and multilateral instruments on anti-corruption have effect in your jurisdiction?
To fight cross-border corruption effectively, Germany supports the implementation of and compliance with international standards against corruption through active participation in the United Nations, the World Bank, the G7/G20 and the Organisation for Economic Co-operation and Development (OECD).
In Germany, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions applies. In addition, Germany has acceded to the UN Convention against Corruption. The Criminal Law Convention on Corruption of the Council of Europe and a supplementary protocol were further ratified by Germany on 10 May 2017.
As Germany is an EU member state, European legal instruments to combat corruption also apply in Germany. Germany has transposed into national law the Protocol of 27 September 1996 to the Convention on the Protection of the European Communities' Financial Interests and the Convention of 26 May 1997 on the Fight against Corruption Involving Officials of the European Communities or officials of Member States of the European Union. The Directive of 5 July 2017 on the Fight against Fraud to the Union's Financial Interests by Means of Criminal Law must also be taken into account.
1.3 Are there accessible directives or other guidance from enforcement authorities in your jurisdiction?
In Germany, there is no directive or guidance comparable to the guidance on the UK Bribery Act. Binding guidelines for the prevention of corruption exist only for the public sector. For example, a federal government directive governs corruption prevention at the federal administration level (available at www.itzbund.de/SharedDocs/Downloads/DE/RL_KorrPr.pdf?__blob=publicationFile&v=1).
1.4 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?
The law enforcement authorities and the courts are responsible for enforcing the anti-corruption legislation. In all German states, there are special public prosecutor's offices for white collar crime, in which special departments are set up to combat corruption. In some states, there are also specialised public prosecutor's offices for corruption offences.
If corruption is suspected at the outset, the public prosecutor's office is obliged to intervene. An exception in this respect exists under Section 299 of the Penal Code. Since this provision governs a relative offence on complaint, corruption in business transactions requires a formal criminal complaint.
If the suspected corruption is confirmed, the public prosecutor's office will file charges. If the culpable offence can be proven, the offender will be sentenced to a fine or imprisonment by the court.
Under certain conditions, however, the public prosecutor's office may waive the prosecution (cf Sections 153 and following of the Code of Criminal Procedure. In the event of suspension under Section 153a(1) of the Code of Criminal Procedure, the public prosecutor's office may order the defendant to pay a fine.
To ensure that corruption offences are not worthwhile for offenders, Sections 73 and following of the Penal Code provide for confiscation of the proceeds of the offence. Confiscation is ordered by the court.
In the absence of corporate criminal law, companies in Germany may be sanctioned only by Section 30 of the Act on Administrative Offences. The public prosecutor's office is responsible for prosecution (cf Section 131(3) of the Act on Administrative Offences). Obviously, only a fine can be imposed on legal entities. Alternatively or cumulatively, the secondary sanction of confiscation known from criminal law (Sections 22 and following of the Act on Administrative Offences) may be ordered.
1.5 What are the statistics regarding past and ongoing anti-corruption procedures in your jurisdiction?
The Federal Criminal Police Office published a Federal Status on Corruption for 2017, in which the crime situation in Germany is presented and evaluated. The report shows that corruption in Germany mainly arises in public administration. Nevertheless, the Federal Criminal Police Office noted a decline in the number of corruption crimes registered by the police for 2017. This decline is attributed to effective compliance structures in companies and corruption prevention measures in the public sector.
A report published by Martin Luther University in Halle-Wittenberg, entitled "White-collar crime 2018 - added value of compliance - forensic experiences" (available at www.pwc.de/de/risk/pwc-wikri-2018.pdf), reached the same conclusion.
Germany currently ranks 11th in the annual Corruption Perception Index published by Transparency International.
1.6 What are the shortcomings identified in your jurisdiction's anti-corruption legislation (including recommendations of the Organisation for Economic Co-operation and Development, where applicable)?
Criticisms relate to inadequate legislation on the one hand and shortcomings in the prosecution of acts of corruption on the other.
With respect to the current legislation, the rudimentary regulations on the liability of companies come in for particular criticism. The OECD has therefore urged Germany to hold companies accountable like natural persons for corruption offences committed from within the company, and to sanction companies effectively, appropriately and dissuasively in the future.
The existing offences of corruption are in some cases perceived to be overly vague. The lack of regulations...
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