Subventionsbetrug: what penalty you face if details in a funding application were wrong

§ 263 Abs. 1 StGB presupposes that a person acts with the intention of obtaining for themselves or for a third party an unlawful pecuniary benefit, thereby creates or maintains a mistaken belief and damages another person's assets. Someone who fills in a form incorrectly without meaning to does not meet these requirements.

§ 264 StGB is built differently. The offence attaches not to damage but to the statement itself, and § 264 Abs. 5 StGB additionally makes commission with gross negligence punishable. Gross negligence is more than an oversight, but distinctly less than intention. Anyone who signs a funding application without checking it, who takes figures from an out of date schedule or who does not read the supporting documents is moving in this area. That is why an ongoing review of funding is to be taken seriously, even where nobody meant to conceal anything.

Under § 264 Abs. 4 StGB an attempt is punishable only in the cases of Absatz 1 Nummer 2, that is, use for a purpose other than the one permitted.

The case can turn on this question. § 264 Abs. 9 StGB names two groups: facts that are designated as material to the subsidy by the body granting it, by statute or on the basis of a statute, and facts on which the approval, granting, reclaiming, continued granting or leaving in place of a subsidy depends by law or under the subsidy contract.

Alongside this stands the Subventionsgesetz, whose full name is Gesetz gegen mißbräuchliche Inanspruchnahme von Subventionen. § 2 Abs. 1 SubvG obliges the body granting the subsidy to designate the subventionserhebliche Tatsachen as such to the applicant before approval. Where doubts arise later, facts are to be designated as material to the subsidy after the event (§ 2 Abs. 2 SubvG). From the perspective of the defence a plain but important question follows from this: which statement had actually been designated as material to the subsidy in the particular procedure, and where is that recorded?

§ 264 Abs. 6 StGB provides: whoever voluntarily prevents the subsidy from being granted on the basis of the offence is not punished under Absätze 1 und 5. Where the subsidy is not granted without any action on the offender's part, they go unpunished if they voluntarily and seriously endeavour to prevent it from being granted.

Two points about this are decisive. First: the provision operates before the subsidy has been granted. Once the money has been paid out, by its wording it no longer applies. Second: this is something different from the Selbstanzeige (a voluntary self-report to the authorities correcting earlier statements) under § 371 AO, which in tax law leads to exemption from punishment on narrow conditions specifically governed there and whose bars are listed in § 371 Abs. 2 AO. Anyone who confuses the two routes and writes a corrective notification while proceedings are running creates a piece of evidence against themselves. Whether anything is to be notified in the individual case, what a notification may contain and how it relates to the criminal proceedings belongs to be clarified before any drafting, not afterwards. You do not have to make a statement on the matter; you must be informed of the right to remain silent (§ 136 Abs. 1 Satz 2 StPO).

For § 264 StGB the limitation period for prosecution is five years, because the offence carries a maximum of more than one year and up to five years of imprisonment (§ 78 Abs. 3 Nr. 4 StGB). The particularly serious case does not change this, because increases for particularly serious cases are left out of account when the period is determined (§ 78 Abs. 4 StGB). Limitation begins as soon as the offence is completed (§ 78a Satz 1 StGB). When that was can be disputed in funding procedures involving applications, interim reports and final statements of use. A period you have calculated yourself without looking at the case file is of no help.

What is possible in proceedings about Subventionsbetrug is decided by the application documents, by the decisions granting the funding and by the question which facts were designated as material to the subsidy. An overview can be found on our page on white collar crime; for tax allegations, the page on tax criminal law is the place to go.