Germany has cracked down on the bribery of foreign public officials in recent years, prosecuting and sanctioning nearly 70 individuals and 6 companies to date. But it should do even more to prosecute companies and should apply tougher sanctions.
The OECD Working Group on Bribery has just completed a review of Germany’s enforcement of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related instruments.
The Working Group recommended that Germany should:
- Ensure sanctions against companies are sufficiently dissuasive and go well beyond confiscation of profits;
- Encourage tougher criminal sanctions against individuals;
- Increase transparency on cases where individuals pay a fine and avoid prosecution;
- Clarify the restrictions on facilitation payments; and
- Strengthen whistleblower protection for private-sector employees.
The Working Group also highlighted positive aspects of Germany’s efforts to fight foreign bribery: in particular, the pragmatic approach taken by Germany to prosecute and sanction individuals with a range of offences, including commercial bribery and breach of trust, and the use of non-prosecution arrangements. The Working Group also welcomed the close cooperation with other Parties to the Convention; the effectiveness of tax audits as a means of detection; and the increased level of awareness of the foreign bribery offence among German companies.
The report lists all the recommendations of the Working Group on pages 69-73, and includes an overview of recent enforcement actions and specific legal and policy features in Germany for combating the bribery of foreign public officials. As with all other OECD Working Group members - which include all 34 OECD Members plus Argentina, Brazil, Bulgaria and South Africa - Germany will orally report to the Working Group on its actions to implement the Working Group’s recommendations after one year. Germany will submit a written report to the Working Group within two years, which will be the basis of a publicly-available Working Group evaluation of Germany’s implementation of the recommendations.