Invitation, gift, consultancy fee: where Vorteilsannahme and Bestechlichkeit begin

The §§ 331 ff. StGB apply only to a defined group of persons. § 11 Abs. 1 Nr. 2 StGB defines as an Amtsträger anyone who under German law is a civil servant or a judge, holds another public law office, or is otherwise appointed to perform tasks of public administration at an authority or at another body, or on their behalf, and that regardless of the organisational form chosen for the performance of those tasks.

The final clause is the difficult one. It means that the legal form alone decides nothing. Whether an employee of a municipal company, a doctor at a hospital in public ownership or a private body entrusted with public tasks is an Amtsträger is a question of the individual case, answered by reference to the task and to how the person is embedded in it. Anyone who simplifies here arrives at a result that the individual case does not support.

Alongside this, § 11 Abs. 1 Nr. 2a StGB names the European public official, Nr. 3 the judge and Nr. 4 the person under a special obligation towards the public service, that is, a person who without being an Amtsträger is employed at an authority or a comparable body and is formally placed under an obligation on the basis of a statute.

Anyone who gives rather than takes is found in the §§ 333 und 334 StGB. § 333 Abs. 1 StGB makes Vorteilsgewährung, the granting of a benefit, a criminal offence, that is, offering, promising or granting a benefit for the exercise of official duties, with imprisonment of up to three years or a fine. § 334 Abs. 1 Satz 1 StGB covers Bestechung, bribery, that is, the giving of a benefit as consideration for an official act in breach of duty, with imprisonment of three months to five years, and in less serious cases under sentence 2 with imprisonment of up to two years or a fine.

Both provisions know an exception by way of authorisation. Under § 331 Abs. 3 StGB the act is not a criminal offence under subsection 1 where the offender allows a benefit not demanded by them to be promised or accepts one, and the competent authority, within its powers, has either authorised acceptance beforehand, or the offender reports the matter to it without delay and it authorises acceptance. § 333 Abs. 3 StGB contains the corresponding rule for the person granting the benefit. According to its wording this exception applies only to Vorteilsannahme and Vorteilsgewährung, not to Bestechlichkeit and Bestechung.

In private commercial dealings § 299 StGB applies. Subsection 1 covers an employee or agent of an undertaking who in commercial dealings demands a benefit, allows one to be promised or accepts one, in two variants: under number 1 as consideration for giving another person an unfair preference in competition when obtaining goods or services, and under number 2 without the consent of the undertaking as consideration for performing or omitting an act when obtaining goods or services and thereby breaching their duties towards the undertaking. Subsection 2 covers, as a mirror image, the giving side. The range of penalty is imprisonment of up to three years or a fine.

§ 300 Satz 1 StGB provides for particularly serious cases under §§ 299, 299a und 299b StGB imprisonment of three months to five years; sentence 2 names as standard examples a benefit on a large scale and acting on a commercial basis or as a member of a gang. § 301 Abs. 1 StGB provides that an offence under § 299 StGB is prosecuted only on application, unless the prosecuting authority considers intervention of its own motion to be called for on account of the special public interest. The provision names § 299 StGB alone.

The benefit does not without more remain with the recipient. Under § 73 Abs. 1 StGB the court orders the confiscation of what the offender or a participant obtained through an unlawful act or for it; under subsection 2 the same applies to benefits derived from it. To secure this, an order can be made under § 111e Abs. 1 StPO for a Vermögensarrest, an attachment of movable and immovable assets.

For undertakings, § 30 Abs. 1 OWiG comes in addition. Where a person in a management position has committed a criminal offence through which duties of the undertaking were breached, or through which the undertaking was enriched or was intended to be, a Geldbuße, a fine imposed outside the criminal penalties, can be imposed on the undertaking. Under § 30 Abs. 2 OWiG it amounts to up to ten million euros in the case of an intentional and up to five million euros in the case of a negligent criminal offence. § 130 Abs. 1 OWiG additionally covers the omission of necessary supervisory measures; under § 130 Abs. 3 Satz 1 OWiG the regulatory offence can be sanctioned with a Geldbuße of up to one million euros where the breach of duty carries a criminal penalty.

Consequences of a conviction under civil service law, employment law for public bodies or professional law are not decided by the criminal court. Separate proceedings, separate bodies and separate standards are responsible for those. How such a body will decide cannot be predicted from within the criminal proceedings.