1. Introduction
Since 18 June 2024, the "inadmissible representation of interes…
Since 18 June 2024, the "inadmissible representation of interests" by mandate holders has been a criminal offence.
The newly-added section 108f of the German Criminal Code (Strafgesetzbuch, StGB) is to close a loophole regarding criminal liability which became particularly apparent in the aftermath of the Mask deal decision by the German Federal Court of Justice (BGH)1. Politicians of the Bundestag (German Parliament) and of several German state parliaments received six-figure commissions in exchange for helping companies make lucrative mask deals during the Covid crisis. This, however, went unpunished because section 108e StGB merely criminalises activities in the bodies of the parliament or parliamentary parties, i.e. activities performed during parliamentary work in a plenary session, in the German Parliamentary Committees and in the working groups of the parliamentary parties.2
The goal of the new section 108f StGB is to penalise the ability of mandate holders to exert their influence when they use it for the benefit of third parties in exchange for payment. The explanatory memorandum states in this context:3
"Based on their position, mandate holders regularly have special relationships and privileged access to ministries, authorities and other bodies which are subject to their parliamentary checks. This goes hand in hand with the risk of commercialising the corresponding opportunities to exert influence for the benefit of third parties in return for payment and thus the risk of blurring lines between monetary interests and the mandate. Mandate holders using their roles entrusted to them in the interest of public welfare for their own benefit by trading their influence may undermine the trust in parliamentary democracy and its elected representatives."
Section 108f StGB aims to mitigate this risk.
Under section 108f (1) StGB, it now is a criminal offence for mandate holders to demand, allow themselves to be promised or accept an undue material benefit for themselves or a third party in return for performing or refraining from performing an act during their mandate to represent interests of a provider of benefits or a third party. Sentence 1 only applies [...] if such representation of interests in return for payment violated the relevant provisions relating to the legal status of the mandate holder.
Examples of "relevant provisions" for members of the Bundestagin section 108f (1) sent. 2 StGB are the provisions of sections 44a et seq of the Members of the Bundestag Act (Abgeordnetengesetz, AbgG).
Section 108f (2) StGB, in turn, penalises the party granting a material benefit.
From now on, both accepting (section 108f (1) StGB) and granting (section 108f (2) StGB) a material benefit "during a mandate" are covered by law, meaning that − unlike in section 108e StGB − no immediate connection with the parliamentary decision-making process is required for criminal liability.
Unlike the other criminal law provisions against corruption (sections 331 et seq, 299 et seq and 108e StGB), section 108f StGB constitutes what is called a"pre-emptive anti-corruption delict" (Korruptionsvorfeldbekämpfungsdelikt)4. This means that mandate holders make themselves liable to prosecution as soon as they confirm that they may influence the decision of a competent official in favour of a benefit provider in exchange for an undue material benefit. The major difference to the definition of corruption-related criminal offences applied so far is that the service in return must be a material benefit, i.e. not just any advantage at all.
Criminal liability under section 108f StGB requires that the representation of interests in return for payment "would violate the relevant provisions relating to the legal status of the mandate holder" (section 108f (1) sent. 2 StGB). It does not matter whether relevant provisions were actually violated. Neither is an additional connection to the mandate and "taking advantage" of the mandate required because a connection to the mandate already exists due to the fact that such representation of interests is subject to parliamentary law provisions and would violate them.5
As a result, mandate holders may now also be subject to criminal sanctions (e.g. section 44a AbgG) for a (potential) violation against relevant provisions, in particular of the Members of the Bundestag Act and the Members of Parliament Acts of the various states. At the same time, the corresponding provisions also become relevant for the provider of benefits because also section 108f (2) sent. 2 StGB requires such violation.
Companies should use this new risk of criminal liability as a reminder to update their corruption prevention provisions and, in particular, to revise their business partner due diligence.
Dr Oliver Ofosu-Ayeh
Dr Jochen Pörtge
Franziska Rentel
1 BGH, decision of 5 July 2022 – StB 7–9/22.
2 BT-Drs. 18/476, page 8.
3 BT-Drs. 20/10376, page 1.
4 Statement no. 23 of the German Federal Bar regarding the draft law to change the German Criminal Code – criminal liability of the inadmissible representation of interests (BT-Drs. 20/10376), page 4.
5 BT-Drs. 20/10376, page 8.
