Germany Anti-corruption Guide 2022
1. Is your country a member of the OECD Anti-Bribery Convention?
Yes.
2. Is your country a member of any other bilateral or multilateral conventions on anti-corruption?
Yes. Germany is a member of the United Nations Convention against Corruption. In addition, Germany is a member of ‘The Group of States against Corruption (GRECO). GRECO’s objective is to improve the capacity of its members to fight corruption by monitoring their compliance with the Council of Europe's anti-corruption standards through a dynamic process of mutual evaluation and peer pressure.
3. Are there local anti-corruption laws in your country focusing on corporations, not individuals? If yes, what sanctions can be imposed?
No. Criminal liability only affects individuals, but not companies. Companies can only be generally liable for the behavior of the individual according to Sec. 30 of the Administrative Offences Act.
4. Can companies be held liable for acts of corruption under civil or administrative law?
Yes. If an employee in a company bribes or is bribed, a fine up to EUR 10 million can be imposed against the company according to administrative offense law. In addition, a liability under civil law is possible.
5. Is corruption of individuals punishable?
Yes. Section 299 German Criminal Code regulates active bribery and passive bribery in business dealings, i.e. towards or by employees or agents of a company. In addition, active and passive bribery of mandate holders (Sec. 108 e German Criminal Law) and public officials (Sec. 331 et seq. German Criminal Law) as well as in the health sector (Sec. 299a and b German Criminal Law) is punishable.
6. Are facilitation payments allowed?
No. There is no exemption for facilitation payments under German law.
7. Is there a legal regulation/maximum limit for accepting or giving gifts, invitations, etc.?
No.
8. Are bribes to foreign government officials prohibited?
Yes.
9. Does your legislation have any extraterritorial reach?
Yes, however, specific circumstances must be fulfilled.
10. Is it possible to confiscate assets from the company?
Yes. According to German Administrative Offence Act.
11. Does your legislation rely on deferred prosecution or non-prosecution agreements or any other type of non-trial resolution for corruption?
No. There is only the possibility of discontinuing proceedings, e.g. due to insignificance. In some cases, the discontinuation takes place against the imposition of a fine.
12. Can a company be liable for the acts of its intermediaries or third parties?
Yes. As long as the bribing individual is deemed to be an agent of the Company under German law (i.e. is entitled and obliged by virtue of his or her position to act on behalf of the company and can directly or indirectly exercise influence on decisions concerning the scope of business operations).
13. Can a parent company be liable for the acts of its subsidiaries?
Generally no, with the exception of very special cases.
14. Are there any affirmative defenses or exceptions for those accused of corruption acts?
No. In principle, all criminal offenses under German law must be committed unlawfully and with fault. Accordingly, the individual has possibilities of defense in this respect. As far as the civil or administrative liability of companies is concerned, it is recognized in case law that the existence of appropriate compliance management systems can mitigate or exclude liability under the German Administrative Act or Civil Law.
15. Does your jurisdiction require domestic entities to implement anti-corruption internal programs?
No. However, companies providing investment services as well as credit and financial services institutions are required by specific laws to establish a proper business organization to comply with legal provisions. Apart from that, there is no general legal regulation that the companies have to implement such programs.
16. Is having a compliance program a defense or mitigating factor, while reviewing sanctions?
Yes. It is recognized in case law that the existence of appropriate compliance management systems can mitigate or exclude liability under the German Administrative Act or Civil Law. However, there is no explicit legal regulation.
17. Could the cooperation with the authorities or an internal investigation be a defense or mitigating factor?
Yes. It is recognized in case law that Internal Investigations can mitigate or exclude liability under the German Administrative Act or Civil Law. However, there is no explicit legal regulation.
18. Is there any publicly available guideline issued by the authorities in charge of enforcing anti-corruption laws? For example, manuals on compliance programs, leniency agreements, etc. If so, please provide the link.
No. There are only guidelines/standards of private associations that deal with the design of compliance management systems. In addition, the German Cartel Office has issued guidelines outlining the basic elements of a compliance management system for the self-cleaning of the company in the event of competition violations.
Contributor
Taylor Wessing
Rebekka Krause, R.Krause@taylorwessing.com