Acceptance and Granting of Benefits under German Criminal Law
The terms acceptance of benefits und granting of benefits are among the significant criminal offenses in German criminal law and are particularly relevant in the context of combating corruption in the public sector and in business transactions. These offenses protect the public’s trust in the integrity of public officials as well as in the fairness of economic activity. The following provides a comprehensive presentation of the terms acceptance and granting of benefits, explains their statutory foundations, and highlights practical aspects.
1. Statutory Foundations
1.1. Acceptance of Benefits (§ 331 of the Criminal Code)
The acceptance of benefits is governed by § 331 paragraph 1 of the German Criminal Code (StGB). It criminalizes the acceptance of a benefit by a public official for themselves or a third party as consideration for an official act.Legal Text (§ 331 para. 1 StGB):
Anyone who demands, has promised, or accepts a benefit for themselves or a third party for the performance of their official duties shall be punished with imprisonment of up to three years or a fine.
1.2. Granting of Benefits (§ 333 StGB)
The granting of benefits is codified in § 333 StGB. In this case, it is not the recipient but the grantor of the benefit who is punished.Legal Text (§ 333 para. 1 StGB):
Anyone who offers, promises, or grants a benefit to a public official, judge, or member of a court for the execution of official duties shall be punished with imprisonment of up to three years or a fine.
2. Elements of the Offense
2.1. Benefit
A benefit is any objectively valuable donation to which the recipient has no legal entitlement and which improves their economic, legal, or personal situation. This includes not only money and material gifts, but also services, invitations, and other advantages.
2.2. Concept of Public Official
A public official, according to § 11 para. 1 no. 2 StGB, is in particular anyone who is a civil servant or judge under German law, is in any other public-law official relationship, or exercises any other public office. Certain elected officials and employees in public service also fall under this definition.
2.3. For the Performance of Official Duties
The acceptance and granting of benefits must be related to the official duties of the favored public official. A distinction is made between benefits for conduct in accordance with duty and those for conduct contrary to duty (the latter see §§ 332, 334 StGB – bribery and corruption).
3. Distinction from Bribery and Corruption
While the acceptance and granting of benefits criminalize the mere acceptance or offer of a benefit without requiring a specific breach of duty, the offenses of bribery (§ 332 StGB) and corruption (§ 334 StGB) go further. They require that the public official accepts a benefit as consideration for carrying out or refraining from a specific unlawful official act.
4. Subjective Elements of the Offense
Both acceptance and granting of benefits require intent. The perpetrator must be aware that they are accepting, offering, or granting a benefit to or for the official performance of duties. Mere negligence is insufficient.
5. Penalty and Sentencing
The basic offense of acceptance and granting of benefits provides for imprisonment of up to three years or a fine as a legal consequence. In particularly aggravated cases – such as commercial activity or exceptional severity of guilt – higher penalties may apply, which is mainly relevant for related offenses such as bribery and corruption.
6. Legally Permitted Acts and Exceptions
Not every benefit leads to criminal liability. As a rule, socially appropriate donations are permitted, such as low-value tokens that are expressions of general politeness and are clearly not intended to influence official conduct. The applicable internal regulations and compliance guidelines, which may define maximum limits for donations, are decisive.
Grants of benefits in the context of publicly customary events (e.g., bouquets of flowers at service anniversaries) are also generally exempt from criminal liability, provided they are given generally for the performance of official duties and have no individual reference.
7. Prosecution and Practical Relevance
Corruption offenses such as acceptance and granting of benefits are consistently prosecuted by investigative authorities. In public administration, there is also an obligation to report such incidents internally. Companies and public authorities have established compliance systems to prevent even the appearance of irregularities and to ensure preventive advice.
8. Significance in the International Context
German law regarding acceptance and granting of benefits is connected to international treaties and conventions on combating corruption, such as the UN Convention Against Corruption and corresponding EU Directives. The regulations thus serve not only domestic protection, but also the fulfillment of international obligations.
9. Legal Definitions and Related Terms
- Bribery (§ 332 StGB): Acceptance of a benefit for an unlawful official act.
- Corruption (§ 334 StGB): Granting a benefit for an unlawful act.
- Commercial bribery (§§ 299 ff. StGB): Refers to bribery and acceptance of bribes in commercial transactions.
10. Summary
The provisions on acceptance of benefits und granting of benefits apply already at early stages to protect the integrity of the public service and confidence in state institutions. They establish clear criminal limits and have great practical significance due to numerous decisions by courts and administrative regulations. The consistent observance of these rules is of particular importance for public officials and donors in order to avoid criminal acts and lasting reputational damage.
Frequently Asked Questions
When does acceptance of benefits constitute a criminal offense?
Acceptance of benefits constitutes a criminal offense when a public official, i.e. a person in public service, demands, has promised, or accepts an undue benefit for an official act without any legal basis for doing so. It is irrelevant whether the official act has already been performed or is to be performed in the future. It also does not matter whether the benefit accrues to the public official themselves, a third party, or a legal person. The threshold for criminal liability is reached when the benefit is connected with the exercise of official duties and is likely to impair trust in the integrity of the public service. Merely accepting donations that are socially customary or legally permitted does not in itself establish criminal liability.
What is the significance of the connection between the benefit and the official act?
The connection relevant for criminal law exists when the benefit is granted in relation to the performance of official duties. It is sufficient if, from the perspective of a reasonable third party, there is a relationship between the benefit and official conduct. It does not matter whether the official conduct was actually supposed to be influenced or was influenced; the mere appearance of potential influence suffices to fulfill the offense. What is decisive is that the granting or acceptance of the benefit creates the objective concern that the official will no longer act solely according to law and justice.
Who is affected by the regulations on acceptance and granting of benefits?
The criminal provisions on acceptance and granting of benefits primarily apply to public officials within the meaning of § 11 StGB, i.e., civil servants, judges, soldiers, and others in public service who perform public administrative tasks. Additionally, these provisions also apply to specially appointed persons and to managing employees in certain companies entrusted with sovereign duties. Private individuals may also be criminally liable if they offer or grant a benefit (granting of benefits) in order to influence the performance of official duties by a public official.
How does acceptance of benefits differ from bribery?
The difference between acceptance of benefits and bribery mainly lies in the existence of what is called an ‘illegality agreement.’ For criminal liability due to acceptance of benefits, it is sufficient that a benefit is demanded, accepted, or promised in relation to official activity. For bribery, there must also be an agreement that the benefit is provided in return for a specific official act, and specifically one that is contrary to duty (illegality agreement). Bribery therefore covers the more serious cases where the official deliberately violates or has violated their official duties.
Are there exceptions or de minimis thresholds when accepting benefits?
Yes, the legislature and case law recognize so-called socially appropriate donations as exceptions if, according to social norms, these are considered insignificant (e.g., advertising articles of low value, coffee, or pens). Such low-value tokens are typically not sufficient to impair confidence in the integrity of public administration. However, the specific value limits are not explicitly regulated by law and vary according to authority guidelines and individual cases. In cases of uncertainty, it is generally recommended to report or obtain consent from the employer.
What legal consequences are there for the acceptance or granting of benefits?
The legal consequences range from fines to imprisonment and are determined according to the nature and severity of the individual case. For public officials, imprisonment of up to three years or a fine is provided for (§ 331 StGB). In addition, disciplinary action is regularly taken, which can go as far as removal from service. The civil legality of benefits so obtained is also regularly not given, so restitution may be required. Finally, there may be reputational damage to the public service and possibly further employment law consequences.
What role do internal codes of conduct and compliance guidelines play?
Authorities and companies are increasingly establishing compliance guidelines and codes of conduct to systematically prevent corruption and acceptance of benefits. These guidelines often specify statutory requirements and define binding value limits or special approval procedures for the acceptance of gifts. Compliance with such rules is obligatory not only from an employment perspective but is also taken into account in criminal proceedings. Violation of internal rules may by itself result in disciplinary and employment law measures, even if the statutory limit has not yet been exceeded.
