Concept and Meaning of Passive Bribery
Passive bribery is a term from criminal law and refers to the acceptance or solicitation of advantages by public officials or certain professionals in connection with their official duties. It forms the counterpart to active bribery, which focuses on the offer or granting of an advantage. Passive bribery constitutes a criminal offense in Germany and many other countries and serves to protect the integrity of governmental and other public decision-making processes.
Legal Basis in Germany
Criminal Code (StGB)
Passive bribery is regulated in the German Criminal Code (StGB), in particular in Sections 331 to 335. These provisions concern public officials, judges, and soldiers of the Bundeswehr. The core underpins are Section 331 StGB (acceptance of benefits) and Section 332 StGB (bribery).
Section 331 StGB Acceptance of Benefits
The acceptance of benefits refers to accepting an advantage for the proper performance of official duties. It is not required that an unlawful act be committed; rather, simply requesting, being promised, or accepting an advantage is sufficient.
Section 332 StGB Bribery
Here, the acceptance of an advantage for a breach of official duty is punishable. The difference to Section 331 StGB lies in the illegality of the conduct involving a breach of duty.
Who Is the Offense Applicable To?
The regulations on passive bribery apply to:
- Public officials within the meaning of Section 11 (1) No. 2 StGB
- European public officials pursuant to Section 11 (1) No. 2 lit. c, b
- Persons specifically appointed for public service
- Judges, lay judges, and other persons entrusted with judicial duties
- Soldiers of the Bundeswehr
Thus, passive bribery is not only relevant in the narrow context of public authorities but also concerns others acting on public mandate.
Elements and Requirements of Passive Bribery
Accepting, Requesting, Being Promised
According to legal formulations, passive bribery covers three forms of conduct:
- Requesting: Actively asking for an advantage
- Being promised: Accepting the promise of an advantage
- Accepting: Actually receiving the advantage
An advantage can be any material or immaterial benefit that improves the situation of the public official.
Connection to Official Duties
The benefit must be related to the official activity of the public official. Under Section 331 StGB, it is sufficient if the advantage is granted for a lawful official act, whereas Section 332 StGB requires a breach of duty.
Criminal Agreement
In particular, under Section 332 StGB, the acceptance of the advantage must be in a reciprocal relationship to a specific official act (so-called ‘criminal agreement’).
Distinction From Related Offenses
Active Bribery
In contrast to active bribery, which criminalizes the offering or granting of benefits by the perpetrator, passive bribery targets the recipient of the benefit.
Granting and Acceptance of Benefits
Acceptance of benefits (Section 331 StGB) constitutes a punishable act in contrast to bribery, even if no breach of duty occurs. This is intended to prevent even the appearance of corruptibility.
Penalties and Legal Consequences
Sanctions
The penalties for passive bribery differ depending on the seriousness of the act and the offense:
- Acceptance of benefits (Section 331 StGB): Imprisonment of up to three years or a fine
- Bribery (Section 332 StGB): Imprisonment from six months to five years; in especially serious cases, from one year to ten years
Especially Serious Cases
An especially serious case exists, for example, if the public official continuously has advantages promised due to the act or the advantage is of particularly high value.
Further Legal Consequences
In addition to criminal penalties, disciplinary measures, loss of office, forfeiture of pension entitlements, and a lifetime ban from public service may also be imposed.
Passive Bribery in the International Context
Provisions on passive bribery can similarly be found in international law and in the legislation of other countries. The United Nations, the OECD, and the European Union all call for the combating of corruption, including passive bribery, through corresponding national provisions.
International Legal Requirements
International conventions such as the United Nations Convention Against Corruption (UNCAC) and the OECD Convention on Combating Bribery of Foreign Public Officials require member states to prosecute passive bribery effectively.
Implementation in Other Countries
The specific arrangements and level of protection vary. Particularly in countries with less established rule-of-law standards, the definition, penalties, and enforcement of passive bribery may differ significantly.
Special Features of Passive Bribery in Civil Service and Labor Law
Civil Service Law Consequences
For civil servants, passive bribery leads to disciplinary actions even independently of criminal consequences. Accepting gifts without authorization regularly constitutes a violation of the Civil Servants Status Law.
Companies and the Private Sector
In the private sector, passive bribery is covered under Sections 299 et seq. StGB as bribery and corruptibility in business transactions. Similar principles apply here, although the special duty of loyalty applicable to public officials does not apply.
Prevention and Compliance
To combat passive bribery, public institutions and companies are required to introduce compliance measures. These include codes of conduct, transparency rules, and reporting obligations to prevent, detect, and sanction corrupt behavior.
Literature and Further Information
- Criminal Code (StGB), current version
- Federal Ministry of Justice, Guide to Corruption Prevention
- United Nations Convention Against Corruption (UNCAC)
- OECD Convention on Combating Bribery of Foreign Public Officials
- Federal Court of Justice decisions on Sections 331 et seq. StGB
Note: Passive bribery is a core criminal offense in German anti-corruption law, intended to safeguard the neutrality, objectivity, and integrity of public officials and other functionaries. Consistent prosecution and prevention are essential elements of an effective legal system.
Frequently Asked Questions
What penalties apply for proven passive bribery under German law?
Under German criminal law, passive bribery is severely punished under Section 332 StGB (Criminal Code). If it is proven that a public official has accepted or solicited an advantage for themselves or for a third party as consideration for an official act, this may be punished with imprisonment from six months to five years. In especially serious cases, such as when the offender continuously demands or accepts advantages or serious harm occurs, the penalty is imprisonment from one year to ten years. Fines are expressly excluded for these offenses. Furthermore, the court may impose additional penalties such as a professional ban or the confiscation of assets. Particularly relevant is the loss of civil service rights, which can be imposed under Section 24 BeamtStG or Section 41 BBG if the offender is a civil servant.
When does criminal liability for passive bribery begin?
Criminal liability arises as soon as a benefit is requested, being promised, or accepted, even if the actual official act for which the benefit is granted has not yet been performed. This means that the result—such as the actual favoritism in office—is not a requirement for the offense. Simply requesting an advantage is punishable, regardless of whether the required consideration is subsequently rendered. What is important is that there is a functional connection between the benefit and future or past official duty.
Who is considered a public official in the sense of passive bribery?
The law expressly defines the term ‘public official’ in Section 11 (1) No. 2 StGB. This includes civil servants, judges, persons in public service such as employees of municipal companies, and even soldiers of the Bundeswehr. Persons otherwise entrusted with public tasks, such as mayors or members of public committees, can also be public officials in the sense of criminal law. The status as a public official is decisive for the application of relevant anti-bribery provisions such as Section 331 et seq. StGB and the severity of penalties.
Is an attempt at passive bribery punishable?
The mere attempt at passive bribery, for example unsuccessfully requesting an advantage, is punishable under German law pursuant to Section 23 StGB in connection with Section 332 StGB. This means it is sufficient for a public official to demand a benefit, even if it is neither offered nor granted. The punishability of the attempt is expressly provided to suppress the initiation of corrupt processes.
What role does knowledge of the benefit play in the assessment of the offense?
Legally decisive is that the public official is aware of receiving or requesting a benefit as a quid pro quo for an official act. Unknowing acceptance of benefits, for example unsolicited gifts with no connection to an official act, generally does not constitute a criminal offense. However, once the official recognizes that a benefit is offered or granted in connection with their official duties, this can cross the line toward criminal liability—particularly if the benefit is given in expectation of an unlawful official act.
Are there exceptions where the acceptance of gifts is legal?
Under Section 331 StGB (acceptance of benefits), the acceptance of gifts by public officials is generally prohibited if connected with official duties. However, low-value tokens (such as promotional pens or calendars), which are customary and not intended as consideration for a specific act, are tolerated. Many public authorities issue special instructions governing the acceptance and reporting of gifts. In cases of doubt, public officials must report any acceptance of advantages and await the authority’s decision.
Can third parties also be prosecuted for passive bribery?
Yes, German criminal law provides that not only the direct recipient of the advantage, but also third parties who participate as co-perpetrators or accomplices, can be prosecuted. For example, a secretary who knowingly facilitates or organizes the payment of an advantage to a public official is also liable. Similarly, a legal entity (§ 30 OWiG) can be held responsible if the offense is committed by a senior employee and the company benefits. The parties involved are liable according to their role and degree of participation in the offense.
