GERMANY Trends and Developments Contributed by: Thomas Richter and Sina Loibl, RICHTER
• embezzlement by public officials (Article 9 paragraph 1); • undue influence (Article 10); • enrichment through corruption offences (Arti - cle 13); and • obstruction of justice in connection with the commission of any of the offences listed above (Article 12). To the extent that German criminal law already provides for criminal offences addressing these requirements, the need for amendments may be limited. In certain areas, however, significant structural differences between the draft direc - tive and German criminal law can be identified, which could possibly necessitate more substan - tial amendments to German criminal law. For example, German criminal law on corrup - tion distinguishes between public officials on the one hand (Sections 331 et seq of the Ger - man Criminal Code) and elected members of parliament on the other hand (Sections 108e and – most recently – 108f of the German Crimi - nal Code). Under the draft directive, however, members of parliament “shall be assimilated to a national official in accordance with national law”. Accordingly, under the draft directive, bribery of a member of parliament constitutes a sub-case of bribery of a public official. This assimilation reveals one of the main differences to the exist - ing provisions of the German Criminal Code. Under the current German legal doctrine, an argument against such equalisation refers to the different scope of duties and the lack of spe - cific obligations for elected officials. While it is upon elected representatives to enact the laws, public officials enforce the laws. Even if the Ger - man legislator may not be forced to abandon the current distinction between public officials and members of parliament altogether as a result of
the draft directive, a possible need for amend - ments is certainly becoming apparent. Requirements for sanctions In accordance with the provisions set forth in the draft directive, EU member states shall take the necessary measures to ensure that criminal offences are punishable by effective, proportion - ate and dissuasive criminal penalties. For the most serious offences, where the act to be performed by the official is in breach of that official’s duties, Article 15 of the draft directive provides for a maximum term of imprisonment of at least four years for natural persons. With - out prejudice to prison sentences, EU member states shall also implement the necessary meas - ures to ensure that a natural person may be sub - ject to additional sanctions or measures propor - tionate to the gravity of the conduct. Sanctions specified by the draft directive include: • fines; • removal, suspension and reassignment from a public office; and • disqualification from holding a public office or exercising a public service function. Corporate liability Article 16 of the draft directive contains provi - sions on the liability of legal persons. EU mem - ber states shall ensure that legal persons can be held liable for certain corruption offences when such offences are committed for the benefit of those legal persons by any person who has a leading position within the legal person con - cerned, acting either individually or as part of an organ of that legal person, based on: • the power of representation of the legal per - son;
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