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Germany: Phase 2 DIRECTORATE FOR FINANCIAL, FISCAL AND ENTERPRISE AFFAIRS GERMANY: PHASE 2 REPORT ON THE APPLICATION OF THE CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS AND THE 1997 RECOMMENDATION ON COMBATING BRIBERY IN INTERNATIONAL BUSINESS TRANSACTIONS This report was approved and adopted by the Working Group on Bribery in International Business Transactions (CIME) on 4 June 2003 1 TABLE OF CONTENTS A. INTRODUCTION....................................................................................................................... 4 a. Nature of the On-Site Visit ...................................................................................................... 4 b. Methodology ............................................................................................................................ 4 c. German Legal Structure .......................................................................................................... 5 B. RELEVANT FEATURES OF THE GERMAN ECONOMY ................................................. 6 a. General Framework ................................................................................................................. 6 b. Foreign Trade and Investment ................................................................................................ 6 c. Business Support ..................................................................................................................... 8 C. DOES GERMANY HAVE EFFECTIVE MEASURES FOR PREVENTING AND DETECTING THE BRIBERY OF FOREIGN PUBLIC OFFICIALS?...................... 8 a. Steps to Promote Awareness and Provide Resources and Training, regarding Foreign Bribery....................................................................................................... 8 1. General Awareness Promotion by Federal Institutions..................................................... 8 2. Private Sector..................................................................................................................... 9 3. Prosecutors and Police ..................................................................................................... 11 4. ACIB Promotion and Training in the Tax Administration .............................................. 12 5. ACIB Awareness in Publicly Subsidised Projects --Export Credits and Aid-Based Development Financing ............................................... 13 b. Communication and Co-ordination of Responsibilities between the Federal Government and the Länder as well as between the Länder ...................................................................... 14 1. Generally.......................................................................................................................... 14 2. Communication between the Federal Government and the Länder................................. 14 3. Issues relating to Differences in Administration of Criminal Justice between Länder................................................................................................................ 15 4. Issues relating to Public Procurement.............................................................................. 17 c. Reporting Obligations............................................................................................................ 17 1. Auditors............................................................................................................................ 17 2. Tax authorities.................................................................................................................. 19 3. Financial Institutions and the Reporting of Suspected Money Laundering ..................... 19 4. Members of the Public Administration............................................................................ 21 d. Effectiveness of Money Laundering and Accounting Offences .............................................. 23 1. Money Laundering Offence ............................................................................................. 23 2. Accounting Offences........................................................................................................ 24 e. Whistle-blower/Witness Protection and Investigative Powers............................................... 25 1. Protection of Whistle Blowers ......................................................................................... 25 2. Witness Protection .......................................................................................................... 25 3. Investigative Powers ........................................................................................................ 26 2 D. DOES GERMANY HAVE ADEQUATE MECHANISMS FOR THE EFFECTIVE PROSECUTION OF FOREIGN BRIBERY OFFENCES? .................................................. 26 a. Germany’s Record concerning Prosecutions of Bribery........................................................ 26 b. Effectiveness of the Administrative Liability of Legal Persons for the Foreign Bribery Offence............................................................................................. 27 1. Conclusion of the Commission on the Reform of the Criminal Law Sanction System not to Establish Criminal Liability.................................................................................. 27 2. Bribery Offences Involving Legal Persons ...................................................................... 28 3. Are the Sanctions Sufficiently Effective, Proportionate ..................................................... and Dissuasive in Practice?.............................................................................................. 33 c. General Impediments to Prosecuting the Foreign Bribery Offence....................................... 37 1. Prosecutorial Discretion................................................................................................... 37 2. Availability of Mutual Legal Assistance.......................................................................... 39 3. The Elements of the Foreign Bribery Offence................................................................. 39 d. Are the Relevant Sanctions for Natural Persons Sufficiently Effective, Proportionate and Dissuasive in Practice?............................................................................ 41 e. Is the Statute of Limitations Adequate in Practice?............................................................... 42 E. RECOMMENDATION ............................................................................................................ 44 ANNEX I ................................................................................................................................... 46 ANNEX II ................................................................................................................................... 48 3 A. INTRODUCTION a. Nature of the On-Site Visit 1. During June 3-7, 2002 the Federal Republic of Germany (FRG), as a Party to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, participated in a Phase 2 on-site visit by a team from the OECD Working Group on Bribery in International Business Transactions. 2. The team from the OECD Working Group was composed of lead examiners from Austria and Japan as well as representatives from the OECD Secretariat1. The visit consisted of five days of discussions between the examining team and panels of representatives from federal and Länder government, civil society, and the private sector (See Annex I for the list of participants from Germany). The panel interviews took place at the Federal Ministry of Economics and Technology in Berlin, and at the Regional Court Frankfurt, The Federal Financial Supervisory Office (BAFin), and the Kreditanstalt fur Wiederaufbau (KfW – Credit Agency for Reconstruction) in Frankfurt am Main. Discussions were held in both Berlin and Frankfurt in order to meet with representatives in relevant federal ministries in Berlin, as well as public prosecutors, police, and tax administration officials in both Berlin and Frankfurt. Frankfurt was included in the visit due to its specialised economic crime units, and also because Frankfurt is one of Germany’s leading financial centres. The examining team also met with private sector and civil society representatives from the NGO community in Berlin. 3. The on-site visit team is grateful to the German authorities for their co-operation, in particular the Federal Ministry of Economics and Technology who organised all the participants, the locations, and the extensive logistics involved, and the Federal Ministry of Justice who participated in or observed numerous sessions and explained the relevant areas of German criminal and administrative law. b. Methodology 4. Pursuant to the procedure agreed to by the Working Group for the Phase 2 self and mutual evaluation of the implementation of the Convention and the Revised Recommendation, the purpose of the onsite visit was to study the structures in place in the Federal Republic of Germany to enforce the laws and regulations implementing the Convention and to assess their application in practice, as well as to monitor Germany’s compliance in practice with the 1997 Recommendation. In preparation for the on-site visit, Germany provided the Working Group with answers to the Phase 2 questionnaires together with documentary appendices and translations of legislation, which were reviewed and analysed
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