GERMANY Trends and Developments Contributed by: Thomas Richter and Sina Loibl, RICHTER
the European Union and presenting a draft anti- corruption directive in May 2023. This draft directive sets forth minimum provi - sions for the definition of criminal offences and sanctions in the area of corruption, as well as measures for the prevention and combating of corruption. In June 2024, the draft directive was adopted by the Council of the European Union with numerous proposed amendments; the fur - ther course of the European legislative process is yet to be seen. For the first time at a European level, the draft directive brings together requirements on crimi - nal liability for corruption in the public and pri - vate sectors in a single legal act. Under the draft directive, EU member states will be required to criminalise different forms and types of cor - ruption as defined in the draft directive. This is designed to prevent EU member states from establishing their criminal law systems based In principle, the European Union is not vested with general and comprehensive competences to pass legislation in the area of criminal law. Nevertheless, through the issuance of direc - tives, the European Parliament and the Council may establish minimum standards pertaining to the definition of criminal offences and sanctions in areas of particularly serious crime that have a cross-border dimension due to the nature or impact of the offences or a special need to com - bat them on a unified basis. Corruption is one such area of criminality and therefore the Euro - pean Union has legislative competence. on different concepts of corruption. EU’s competences to harmonise anti- corruption legislation A directive is binding in terms of the desired out - come for each EU member state to which it is
addressed, yet allows for flexibility in terms of form and methods at the national level. Conse - quently, a directive must be implemented through the enactment of national legislation, as it does not have direct legal effect in EU member states. It should be noted that implementing the direc - tive (once it becomes final and binding) will not necessarily result in a complete overhaul of existing criminal provisions in all EU member states. Instead, the need for legislative action to implement the requirements of the draft direc - tive will depend upon the criminal provisions that are already in place within the respective EU member state. Therefore, EU member states that have already enacted tough criminal legisla - tion against corruption may only be required to implement relatively minor amendments to their existing legal framework in order to comply with the draft directive. At this stage, it is not yet possible to predict with certainty which provisions of German criminal law will need to be amended and adapted as a result of the draft directive. This is because the European legislative process for the draft directive is still in progress, and there may be significant changes to the specific wording of the future requirements. Nevertheless, some general trends can already be outlined at this point. Minimum requirements for criminal offences Articles 7 to 13 of the draft directive lay down the duty of EU member states to provide for criminal offences for the following acts, including incite - ment and aiding and abetting: • bribery and corruption in the public sector (Article 7); • bribery and corruption in the private sector (Article 8);
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