GERMANY Trends and Developments Contributed by: Thomas Richter and Sina Loibl, RICHTER
In particular, Section 44a of the Members of Par - liament Act was revised to prohibit the accept - ance of material benefits and the paid represen - tation of interests. It should be noted, however, that these regulations are merely administrative law and that breaches thereof do not constitute a criminal offence in their own right. Therefore, a breach of these new rules of conduct does not per se result in criminal liability. Furthermore, the criminal penalties under Sec - tion 108e of the German Criminal Code have been increased to the effect that the offence now constitutes a serious criminal offence ( Verbre- chen ). However, this amendment did not close the gap in criminal liability under Section 108e, which was highlighted by the above-mentioned decision of the Federal Court of Justice. In response to that ruling, the legislator enacted the new criminal offence in Section 108f of the German Criminal Code with the aim of closing the criminal liability gap on the one hand and striking the right balance with the constitution - al rights of elected officials on the other hand. Although there is no doubt that corrupt actions by elected officials may seriously undermine the integrity of parliament, the free exercise of the mandate guaranteed by the German Constitu - tion ( Grundgesetz ) would be severely impaired if members of parliament were to be exposed to incalculable risks of prosecution for performing all kinds of activities that are generally consid - ered appropriate. New offence under Section 108f of the German Criminal Code After coming into force in June 2024, Section 108f of the Criminal Code now extends to extra-par - liamentary activities. According to the legislative reasoning, the new offence intends to safeguard the integrity of parliamentary democracy and its
elected representatives, prevent undue influence on the government and administration, and ensure the impartiality of decision-making processes. Elected officials regularly have special connec - tions and privileged access to the ministries, authorities and other agencies subject to their parliamentary control. If elected officials were to exploit their position, which has been entrusted to them in the interest of the common good, for their own benefit by trading in influence, this could undermine trust in parliamentary democ - racy and its elected officials as a whole. Accord - ingly, the new offence now also applies to cases in which members of parliament exploit their contacts, networks or position to influence offi - cial procedures in exchange for remuneration. At the same time, criminal liability is restricted to the paid promotion of interests that would “vio - late provisions governing the legal status of the public official”. This is intended to ensure that nothing is criminalised that would be permissible under the relevant provisions of parliamentary law. In this respect, the offence is in line with the provisions of the Members of Parliament Act. The penalties provided for under Section 108f are substantially lower than the penalties under Section 108e of the German Criminal Code. This is due to the consideration that the improper pro - motion of interests does not constitute a direct manipulation of the exercise of a mandate, but instead has a subtler effect of influencing the integrity of the parliamentary system. Current developments at European level: new EU anti-corruption directive There have also been important developments at the European level, with the European Com - mission announcing a comprehensive package of measures to effectively combat corruption in
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