Criminal liability of corporations does not exist in Germany. While several laws were proposed in past years introducing corporate criminal liability, as of now, criminal offenses may only be committed by individuals, even if the individual acts on behalf or for the benefit of a corporation.
However, legal entities are subject to administrative fines if certain individuals within the entity commit a criminal or administrative offense.
Corruption offenses committed by the directors and officers (e.g., CEO, board members), senior management, supervising managers or other leading representatives of a corporation may result in an administrative fine of up to EUR 10 million (Section 30(2) Act on Regulatory Offenses)—in cases of bid rigging, up to 10% of the worldwide turnover during the previous year (Section 81c Competition Act “Gesetz gegen Wettbewerbsbeschränkungen”, (GWB)).
The same applies if the corporation, its statutory representatives (e.g., CEO, management board), and certain other individuals tasked with overseeing compliance within a business or parts thereof (e.g., CCO, country manager) intentionally or negligently failed to prevent employees from committing corruption offenses. It may thus be that one corruption offense triggers several different sanctions, e.g., prison time for the perpetrator and any accessories to the crime, an administrative fine for a supervising manager and a further administrative fine for the company. This does not constitute double-jeopardy, because different persons or entities are held accountable for their individual acts and omissions.
Furthermore, the authorities may choose to confiscate all economic proceeds resulting from the corruption offense (Section 73 et seq. GCC; Section 29 Act on Regulatory Offenses). In practice, the confiscation is often regarded as the “real” sanction as it may surpass the maximum fine imposable under German law.
Corporations may also face civil litigation for any damages caused by the corruption offense. As a matter of principle, under German law, a company is civilly liable for its employee acting on behalf of the company.
Upon conviction for a corruption offense, an individual and the corporation may be entered into the centralized German “competition register” (“Wettbewerbsregister”) which is consulted in most public procurement processes, essentially leading to the exclusion of a registered corporation from the public procurement process for a number of years.