Anti-corruption measures tightened up

Largely unnoticed by the general public, the Act to Combat Corruption came into force on 26 November 2015. It creates some new, tougher regulations regarding the bribery of foreign officials.

The concept of the “European official” was newly created in Section 11(1) No. 2a German Criminal Code. This covers all members of the European Commission, European Central Bank, European Court of Auditors or one of the courts of the European Union, civil servants, employees or other persons tasked with carrying out duties for the European Union or for an institution created on the basis of law of the European Union. Whether these persons are citizens of Germany or of other EU member states is irrelevant. European officials are treated as fully equal to German officials with regard to the corruption regulations. In contrast to the previous situation, the granting of an advantage to or the acceptance of an advantage by European officials, in other words the granting of an advantage for the performance of a lawful official act or grooming or sweetening is now also an offence as per Sections 333 or 331 German Criminal Code. This leads to a considerable extension criminal liability. This tougher liability must be taken into account especially when lobbying European institutions.

Bribing foreign officials is now also newly regulated in Section 335a German Criminal Code. The differential treatment of officials from EU member states and those from other states has been abolished. Criminal liability has been extended, as it is no longer only active bribery under Section 332 German Criminal Code, but also passive bribery under Section 334 German Criminal Code which have been made criminal offences. Foreign officials who accept bribes can now be prosecuted for it in Germany as well. Criminal liability for active bribery has been extended with the elimination of “international business dealings“ as a feature. Unlike in the previous Act to Combat Bribery of Foreign Officials in International Business Dealings, there neither has to be a case of cross-border corruption, nor must the perpetrator have acted with the intention of obtaining or ensuring an undue advantage in international business dealings. Under the new rules, all bribery of foreign officials is punishable regardless of whether the act took place partly in Germany or only abroad.

Companies should not forget to adjust their compliance programmes and anti-corruption policies to the new legal situation and to inform their employees about the new extension of criminal liability. Incorrect or out-of-date anti-corruption guidelines can be considered a breach of duty under Section 130 German Administrative Offences Act and for that reason alone, if an employee commits an infringement of the law, an administrative fine can be imposed. This was also increased from €1m to €10m some time ago.