Germany
Currently, the criminal offence of corruption in the private sector applies only to active and passive bribery that distorts or may distort business competition. Most other legal systems prefer to protect individual companies (and thereby the economy) by focusing on breaches of duty within an intra-organisational principal–agent relationship. A bill introduced by the federal government in October 200718 aims to implement a respective provision of the EU Council Framework Decision on Combating Corruption in the Private Sector, suggesting that the definition of the offence be extended to corrupt practices involving a breach of duties by employees beyond business competition.19 Thus, although parliament has not yet considered the bill, it is likely that the criminal law framework for combating corruption in the private sector will be improved sooner or later. Furthermore, the Federal Ministry of Food, Agriculture and Consumer Protection has announced recently that it is working on a draft law to improve consumer-related whistleblower protection in the private sector.20
Using the OECD Guidelines for Multinational Enterprises to tackle corporate corruption TI Germany (TI-G) has used the OECD guidelines to lodge various complaints against corrupt business practices. The guidelines are a set of social, labour, environmental and anti-corruption standards developed by the OECD for transnational companies based in or operating from their territories.21 Forty nations – thirty OECD members and ten non-member states – have
endorsed the guidelines as a basic component of responsible corporate conduct. While the guidelines are voluntary for companies, they have been useful for promoting corporate accountability. Adhering countries are bound by intergovernmental agreement to set up a National Contact Point (NCP), whose functions include responding to complaints arising from alleged violations. The objective in all cases raised by TI-G was to remind the German government of its responsibility to promote adherence to the guidelines’ anti-corruption provisions and encourage companies that had failed to do so to improve their precautionary measures. With its June 2007 complaint against fifty-seven companies involved in the alleged manipulation of the UN Oil-for-Food Programme in Iraq, TI-G launched the most significant case in the history of the guidelines. In October 2005 the Independent Inquiry Committee (IIC) into the UN Oil-for-Food Programme reported that 2,253 companies had paid a total of US$1.8 billion in kickbacks – illicit or disguised payments – to the Iraqi government to obtain contracts to supply food, medicine and other humanitarian goods to the country.22 At least fifty-seven German companies, including Siemens, Linde, Daimler-Chrysler, Fresenius Medical Care, Schering and Braun Melsungen, were listed in the IIC report as having allegedly participated. According to the report, their cumulative kickback payments totalled US$12 million.
18 Bundestags-Drucksache 16/6558. 19 See S. Wolf, ‘Modernization of the German Anti-corruption Criminal Law: The Next Steps’, German Law Journal, vol. 8, no. 3 (2007). For a harsh critique of the draft law, see T. Rönnau and T. Golombek, ‘Die Aufnahme des Geschäftsherrenmodells in den Straftatbestand des § 299: ein Systembruch im deutschen StGB’, Zeitschrift für Rechtspolitik, vol. 40, no. 6 (2007). 20 Frankfurter Allgemeine Zeitung (Germany), 21 May 2008. 21 The complete text, including procedural guidance to the OECD Guidelines for Multinational Enterprises (Revision 2000), is available at www.oecd.org/dataoecd/56/36/1922428.pdf. 22 Independent Inquiry Committee into the UN Oil-for-Food Programme, ‘Report on Programme Manipulation’, 27 October 2005.
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