German Anti-Corruption Legislation
German anti-corruption provisions are contained in the Law on Fighting Corruption, the Criminal Code and the Administrative Offences Act. The Criminal Code’s provisions apply to persons, while companies face civil responsibility under the Administrative Offences Act. Corruption offenses committed abroad can be enforced in Germany.
Law on Fighting Corruption
The Anti-Corruption Law brings German criminal law in line with international standards on commercial bribery. It expands the provisions on corruption in commercial practice contained in the Criminal Code and criminalizes active and passive bribery of employees/agents of a company even if it does not involve a distortion of competition. Implementing the so-called “employer model,” undue advantages to an agent of a company are punishable if they occur without the consent of the company and in return for a breach of duty to that company. For the area of compliance, this means that the policies of companies have a determining influence on the culpability of the company’s employees.
The Criminal Code (Strafgesetzbuch) makes it a criminal offense for a person to offer, pay or accept a bribe in domestic or foreign transactions, and it provides no exception for facilitation payments. Executive managers can be held responsible for offenses committed by company representatives where they actively support or fail to stop the offense. Persons convicted of bribery offenses face up to 10 years’ imprisonment, a criminal fine, and confiscation of revenue obtained as a result of the offense. The Criminal Code applies to offenses committed abroad and can be enforced in Germany. While the criminal provisions apply to persons, companies are potentially civilly responsible under the Administrative Offences Act.
Administrative Offences Act
The Administrative Offences Act (Ordnungswidrigkeitengesetz) holds companies civilly responsible for corruption offenses committed on behalf of the company. The owners and management can be held responsible for intentionally or negligently omitting necessary supervisory measures for preventing criminal offenses. The maximum fine is EUR 10 million for each intentional criminal offense and EUR 5 million for each negligent criminal offense. The penalty can exceed those amounts without limitation to allow authorities to confiscate benefits obtained from offenses.