Criminal offenses in the public sector focus on public officials.  Public officials include German public servants, members of government (at all levels), judges, notaries, soldiers as well as employees employed in public service such as doctors in public hospitals, employees of public utility companies and comparable entities that are controlled by the government or tasked with official business.  Public officials of the EU, including the members of the EU Commission, the ECB, and the European Court of Auditors are also covered persons.

German law distinguishes, broadly speaking, between “bribery” and “offering or accepting benefits”:

It is a criminal offense to offer, promise or grant as well as demand or accept legal, economic or other personal benefits in connection with the performance of official duties (“Vorteilsgewährung”, Section 333 GCC and “Vorteilsannahme”, Section 331 GCC).  The return for the benefit does not need to be a specific official act.  The only requirement is an express or implied “understanding” that the benefit is a return for the general (past or future) performance of official duties.  This rather broad scope has led to difficulties in the past, in particular in connection with providing hospitality to public officials.  Over time, German courts have developed certain limitations and guidelines such as socially adequate, and thus permissible, conduct (e.g., small Christmas presents to teachers), campaign contributions, or research funding.  The granting and accepting of such benefits are usually not considered criminal offenses if existing rules and procedures regarding transparency and documentation are followed.  Approval by the competent authorities pursuant to preset rules may also exempt the granting and acceptance of such benefits from criminal liability.

The more serious offense of bribery is the offer, promise, or granting as well as the demand or acceptance of benefits in exchange for a (past or future) official act that would be in breach of the public official’s duties (“Bestechung”, Section 334 GCC and “Bestechlichkeit”, Section 332 GCC).  This includes illegal acts of a public official as well as acts contrary to internal guidelines or the undue exercise of discretion.

While elected representatives in parliaments and other representatives are not considered public officials, offering or accepting bribes from elected representatives in exchange for an action or omission in connection with carrying out their mandate is a (separate) criminal offense (Section 108e GCC).

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