Concept and Definition of Active Bribery
Die active bribery is a central concept in criminal law, describing the act in which a person offers, promises, or grants an unlawful advantage to an official or another person in order to obtain a wrongful act or omission. Active bribery stands in contrast to passive bribery, in which the official or beneficiary demands, allows themselves to be promised, or accepts the advantage.
In German law, active bribery is specifically regulated in §§ 334 et seq. of the Criminal Code (StGB). It is considered within the context of protecting public interests and the integrity of public administration, but also applies in the business sector.
Legal Basis
Criminal Code (StGB)
Active bribery is primarily regulated in the following provisions:
- § 334 StGB: Bribery
- § 299 StGB: Bribery and Corruption in Commercial Transactions
- § 108e StGB: Bribery and Corruption of Elected Officials
Specifically, § 334 StGB regulates classic active bribery of officials, while § 299 StGB covers active bribery in private business transactions. § 108e StGB relates to active bribery in the context of elected office holders (e.g., members of parliament). Additionally, there are supplementary provisions in secondary criminal law, such as in the Act Against Unfair Competition (UWG).
Elements of the Offense of Active Bribery
Perpetrator
The perpetrator can be any natural person, but also companies. Criminal liability does not depend on whether the perpetrator personally benefits from the expected advantage.
Act
The act consists of offering, promising, or granting an advantage. An advantage is any material or immaterial benefit to which there is no legal entitlement.
- Offering means any explicit or implied declaration of intent to grant an advantage.
- Promising refers to the explicit assurance of an advantage.
- Granting is the actual transfer of the advantage.
Recipient
Recipients in the public sector are officials, European officials, or those specially obligated to public service. In the private sector, they may be employees of any company.
Advantage
The advantage can be of monetary value (e.g., cash, gifts, trips) or non-monetary (e.g., career promises). What matters is that there is a connection with the recipient’s official duties.
Illicit Agreement
An illicit agreement exists if the advantage is granted in exchange for a breach of duty in an official (or business) function. This may involve an act, acquiescence, or omission.
Penalties and Legal Consequences
Sentencing Framework
According to § 334 StGB, active bribery is punishable by imprisonment from six months to five years. In particularly serious cases, for example involving substantial damage or significant advantage transfers, the penalty framework increases to up to ten years imprisonment (§ 335 StGB). Attempted active bribery is also punishable.
Other Legal Consequences
In addition to the main penalty, additional consequences such as confiscation of the benefits obtained, loss of the right to vote, or prohibition from holding public office may be imposed. In the business sector, there may also be trade or professional consequences, such as exclusion from public procurement procedures.
Distinction from Other Offenses
Passive Bribery
Passive bribery (§ 331, § 332 StGB) penalizes the acceptance of an advantage by an official. Active bribery targets the (prohibited) behavior of the person who offers, promises, or grants the advantage.
Granting and Acceptance of Advantages
In contrast to active bribery (with an illicit agreement), even the granting of an advantage (§ 333 StGB) is punishable without a concrete breach of duty if an official receives an advantage for performing their duties.
International Context and Compliance
International Regulations
The fight against active bribery is part of international agreements such as the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the UN Convention against Corruption. German law largely complies with the requirements of these conventions.
Compliance and Prevention
Companies are required to take appropriate measures to prevent active bribery. These include internal policies, employee training, and control mechanisms. If preventive measures are neglected, companies can be fined heavily under the Administrative Offenses Act (OWiG).
Procedural Particularities
Investigation and Criminal Proceedings
Offenses of active bribery are generally prosecuted as official offenses, meaning that law enforcement agencies initiate investigations upon the presence of an initial suspicion. Investigations often only commence through self-reports or tips from third parties, as such offenses are frequently committed in secret.
Leniency Provisions
In the area of corruption offenses, there are special leniency provisions (§ 46b StGB), according to which the court may mitigate or waive the punishment if the perpetrator helps to clarify the offense.
Summary
Active bribery is a criminal act aimed at obtaining wrongful acts by officials or private decision-makers through the granting, offering, or promising of advantages. It is regulated by detailed provisions in the Criminal Code and complementary international regulations and is subject to severe penalties. Both companies and individuals are equally required to prevent active bribery through prevention and compliance measures. The rigorous prosecution serves to protect the integrity and functionality of both public administration and the economy.
Frequently Asked Questions
How is the act of active bribery proven in criminal proceedings?
In criminal proceedings, active bribery is generally proven through a careful evaluation of circumstantial evidence, proof, and witness statements. Specifically, investigative authorities analyze communications such as emails, text messages, witness accounts, or intercepted conversations in order to establish a link between the giver and the recipient of the advantage. Documents such as contracts, invoices, or receipts may also serve as evidence if they indicate an unlawful benefit. The prosecution must prove beyond doubt that an unlawful benefit was provided with the intent to induce or reward a breach of duty. Additionally, a confession by the perpetrator or an accomplice can significantly facilitate proof. In more complex cases, forensic analysis of financial transactions, bank movements, and other business documents is often involved. Especially in the area of white-collar crime, undercover investigators and cooperation with other authorities are often essential for securing evidence.
What penalties can be imposed following a conviction for active bribery?
In the event of a conviction for active bribery, the Criminal Code (StGB) provides for significant sanctions. The penalties depend on various factors, including the seriousness of the offense, the damage caused, and the degree of personal culpability. According to § 334 StGB, active bribery is punishable by imprisonment of up to three years or by a fine. In particularly serious cases, such as when the perpetrator acts for commercial gain or as a member of a gang, the penalty can be up to five years’ imprisonment. In addition to the principal penalty, the court can also impose ancillary penalties, such as a professional ban, confiscation of illegally obtained assets, or revocation of offices and mandates. In cases of bribery involving foreign officials or in commercial transactions, similar sentencing frameworks apply, while special legislation such as the Act for Combating International Bribery (IntBestG) may also apply.
Are there specific elements that must always be met for active bribery?
Yes, the law defines specific elements that must be present for an offense of active bribery to be punishable. These include: first, the act of an advantage giver; second, the unlawful granting, promising or offering of an advantage; third, the existence of a person in reference, who may be an official, a person specially obligated to public service, or a person acting in commercial transactions; and fourth, the purpose of obtaining or rewarding a breach of duty or omission through the granting of the advantage. Furthermore, a connection between the advantage and the official conduct of the person concerned must be demonstrated. The element of an illicit agreement—that the advantage serves as consideration for a specific breach of duty or omission—is also mandatory.
What is the role of the so-called “awareness of deception” in active bribery?
The awareness of deception, meaning the knowledge and intention regarding the unlawfulness, is a key aspect of the subjective element of the crime. The perpetrator must act with intent; that is, he must know about the recipient’s official position and the unlawfulness of the advantage and nevertheless accept the granting of the advantage. Liability for active bribery is excluded if the perpetrator is subject to an unavoidable error of prohibition, i.e., could not recognize the unlawfulness of his conduct and could not have avoided it even by applying the required diligence. In practice, however, ignorance and mere negligence regarding the bribery prohibition do not lead to exemption from punishment.
Do benefits granted in the private sector also fall under the offense of active bribery?
As a rule, the offense of active bribery relates to the public sector, i.e., to officials and persons in public service. However, there are also separate provisions for the private sector, namely § 299 StGB (“Bribery and Corruption in Commercial Transactions”). This law provides that advantages granted in the context of private economic activity with the aim of undue preferential treatment are also punishable. What is always decisive is whether the benefit is intended to illicitly influence one’s own or another’s decision. However, everyday courtesies or socially customary benefits are generally not punishable.
Do self-reports or disclosures play a role in possible sentence mitigation?
Yes, self-reports or timely disclosures before the discovery of the offense can have a mitigating or even exculpatory effect. An explicit self-report, as in tax law, is not stipulated in active bribery law, but a confession may be a significant mitigating factor pursuant to § 46 StGB. What matters is that the disclosure is voluntary and complete, and that the perpetrator contributes to clarification—for example by naming accomplices or outlining the facts of the case. In individual cases, such as within the framework of a leniency agreement, the penalty can even be reduced to complete exemption from punishment, provided that cooperation is decisive for solving the case.
Can active bribery be prosecuted even without a criminal complaint?
Yes, prosecution for active bribery is, as a rule, initiated ex officio; it is an official offense. This means that the public prosecutor’s office must initiate investigations on its own if an initial suspicion is present as soon as it becomes aware of the offense. A criminal complaint by the injured party or a third party is therefore not required. However, victims or witnesses have the option of reporting their suspicions and thus initiating investigations. The public prosecutor can only terminate proceedings if there is insufficient suspicion or if there is a rarely applicable reason to discontinue the case.
