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Russell Miller

Advisory Board:

Gregor Bachmann
Nina Boeger
Matthias Casper
Helge Dedek
Hans-Michael Heinig
Florian Hoffmann
Alexandra Kemmerer
Frank Schorkopf

Senior Editors: 

Besty Baker
Jurgen Bast
Gralf-Peter Calliess

Patrycja Dabrowska
Elisa Hoven
Jen Hendry
Malcolm MacLaren
Stefan Magen
Ralf Michaels
Christoph Safferling
Emanuel Towfigh
Floris de Witte

Associate Editors:

Anna Katharina von Oettingen 

Modernization of the German Anti-Corruption Criminal Law: The Next Steps

By Sebastian Wolf
Read the Full Contribution as a PDF

 “Despite many successes in the anti-corruption movement, […] itmust never be forgotten that both inpolitical life and in the economic sphere there are powerful factors prompting and encouraging corrupt practices.”

A.  Introduction

Shortly after the publication of our overview of necessary amendments to the German anti-corruption criminal law in the light of requirements of international anti-corruption instruments, the German Federal Ministry of Justice issued a Referentenentwurf (first governmental draft) of a Zweites Gesetz zur Bekämpfung der Korruption (Second Anti-Corruption Act). After several years of legislative inactivity, the new law shall implement binding international anti-corruption provisions of the Council of Europe Criminal Law Convention on Corruption, the Additional Protocol to the Criminal Law Convention on Corruption, the EU Framework Decision on Combating Corruption in the Private Sector, and the UN Convention against Corruption. This short comment firstly compares the present law to the draft and then provides a critical analysis. The last section will deal with corruption involving members of parliament, a subject not covered by the draft.

B. Present Anti-corruption Criminal Law and the Draft’s Suggested Modifications – A Short Overview

German criminal law currently deals with bribery involving public officials in the following way:

[Editors’ Note:  see figure in PDF version of article]

The most important modification of the present law suggested by the Federal Ministry of Justice’s draft is the introduction of a new Sect. 335a Strafgesetzbuch (StGB – German Penal Code) on “Ausländische und internationale Bedienstete“ (Foreign and international officials). Moreover, Sect. 332 and 334 StGB shall also apply to Europäische Amtsträger (Officials of the EU institutions). The governmental proposals can be summarized as follows:

[Editors’ Note:  see figure in PDF version of article]

As to corruption in the private sector, the present law only applies to active and passive bribery that distorts or may distort business competition. The Federal Ministry of Justice’s draft extends Sect. 299 StGB to corrupt practices that involve a breach of duties beyond business competition.

C.  Critical Analysis of the Draft