GERMANY Trends and Developments Contributed by: Thomas Richter and Sina Loibl, RICHTER
ecute elected officials for bribery and corruption was Section 108e of the German Criminal Code. Under Section 108e, whoever – in their capacity as a member of the federal parliament ( Bunde- stag ) or as a member of one of the state ( Länder ) parliaments – demands, allows themselves to be promised or accepts an undue benefit for them - selves or a third party in return for performing, or refraining from performing, an act, upon request or instruction, in the exercise of their mandate incurs a penalty of imprisonment for a term of between one year and ten years. Background: implications of the “Mask Affair” The perceived shortcomings of Section 108e became apparent in the aftermath of the so- called “Mask Affair”, and were highlighted in an important decision of the Federal Court of Jus - tice from July 2022. In the underlying case, a private entrepreneur sought to sell face masks to German federal and state authorities at the beginning of the COV - ID-19 pandemic. The entrepreneur approached a member of the German federal parliament ( Bundestag ) and a member of the Bavarian state parliament with a request to exercise their authority and influence as members of parlia - ment, with the objective of facilitating the pur - chase of the masks by the relevant authorities, in exchange for a fee. The two politicians agreed to the proposal and subsequently contacted decision-makers at var - ious federal and state authorities and worked towards the conclusion of purchase contracts for the masks. The total net purchase price under the brokered contracts exceeded EUR50 million. As agreed, the politicians were to receive remu - neration in the millions for their activities. After their scheme was uncovered, criminal investiga -
tions were opened against the politicians and the entrepreneur. The Federal Court of Justice, however, con - firmed the opinion of the lower court that the members of parliament were not criminally liable under Section 108e. For the offence to be com - mitted, it is necessary that a member of parlia - ment performs, or refrains from performing, an act “in the exercise of their mandate”. According to the Federal Court of Justice, this phrase (“in the exercise of the mandate”) is to be under - stood in such a way that only the mandate activ - ity as such is covered, which includes activities undertaken during plenary sessions, in com - mittees and within other parliamentary bodies, such as groups or commissions composed of members of parliament. In contrast, other activi - ties of elected officials that are merely related to the mandate are not included. Therefore, the requirement in Section 108e is not met if elected officials merely invoke their status in extra-par - liamentary activities or exploit the relationships they have established. The legislator’s response Even prior to the Federal Court of Justice’s rul - ing, criminal liability of members of parliament was subject to mounting criticism, and the exist - ing legal framework was deemed inadequate with respect to political corruption. To address these concerns, the Members of Par - liament Act ( Abgeordnetengesetz ) was subject to a comprehensive revision in October 2021. The amendments introduced a more rigorous set of rules of conduct and enhanced transparency measures for members of the federal parliament ( Bundestag ), in order to safeguard the independ - ence of the mandate and to prevent undue influ - ence in the political sphere.
155 CHAMBERS.COM
Powered by FlippingBook