Criminal competition law
German criminal law has neither an original definition of corruption nor a definition of the concept of corruption.
The German Criminal Code contains various definitions of corruptive behavior in different places:
While §§ 331 ff. StGB cover corruption offenses in office, §§ 298 ff. StGB regulate corruption offenses in private business dealings..
The objective of the offences - although covered by the concept of corruption - is also different: the official offences are intended to protect the integrity of the public service, while the legal interest of §§ 298 and 299 et seq. StGB is free competition, i.e. freedom on the market from unfair and undisclosed influences. Only indirectly, the pecuniary interests of the participants in competition are also protected.
Competition law has gained in importance in recent years. On the one hand, the increasing awareness of the public and the business community since it was first regulated in 1997 has led to greater awareness. On the other hand, law enforcement agencies are increasingly specializing in the area, similar to those in antitrust law. This also leads to more and more effective prosecution. Cross-border cases have also gained in importance.
The boundaries between fair methods of competition (permissible sponsorship, socializing with business partners and dual-purpose events) and criminal corrupt conduct have become fluid and not always easy to see through. Sometimes criminal liability depends only on the interpretation of conduct targeted by law enforcement authorities. This makes it all the more important to seek competent support from specialized criminal defense lawyers at an early stage.
In addition to the regulations in criminal law, Section 23 of the Act on the Protection of Trade Secrets (GeschGehG) is a core element of competition criminal law. The regulations are intended to protect companies from the unauthorized dissemination of trade secrets - a violation of the prohibitions on action set out in Section 4 of the GeschGehG is punishable under Section 23.
With the adoption of the GWB Digitization Act in January 2021, the competition authorities are to be able to counter competition issues in the digital space in the future (control of digital companies and market-dominant platforms, control of data access by competitors). the Act provides in sections 81 et seq. provides for fines against private individuals, companies and associations of companies.
Criminal prosecution always poses a considerable (financial) risk for the private individuals and companies concerned. The lawyers of H2W Strafrecht are at your side and help you to bring about the best possible outcome of the proceedings and to reduce monetary consequences.
With the introduction of the so-called competition register, the situation in the area of competition offenses will once again become considerably more serious. In the future, violations of competition law requirements will be recorded in a uniform manner and will be retrievable by contracting authorities. The national register will successively replace the currently existing corruption registers at the state level.
The Act on the Introduction of a Competition Register (WRegG) already came into force on July 29, 2017. The details for implementing the reporting obligations and entries in the competition register have been regulated since 2021 in the legal ordinance on the operation of the register for the protection of competition for public contracts and concessions (Competition Register Ordinance - WRegV). The Federal Cartel Office is the lead agency.
The registration process, which precedes the reporting and query obligations, is currently underway.
Section 2 WRegG lists the offenses to be included in the register. Via the reference to Section 123 (1) of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen), criminal offenses are covered by the catalog: bribery/bribery in commercial transactions under Section 299 of the German Criminal Code (StGB); agreements restricting competition under Section 298 of the StGB are listed separately in Section 2 (1) no. 1 lit. e WRegG. In addition, decisions imposing fines on companies or their legal representatives under Sections 30 and 130 OWiG are also covered.
Prior to entry in the register, there is an opportunity to submit comments. In addition, an early deletion can be requested by so-called measures of self-cleaning. Let the attorneys of H2W Strafrecht advise you on this at an early stage.