Acceptance of undue advantages (Sec 305 StGB)
An office bearer or adjudicator who demands an advantage for himself or a third person or accepts the promise of an undue advantage in return for the lawful execution or omission of official duties commits the offense of accepting undue advantage and is liable to prosecution under Sec 305 StGB.
Officer bearers
As a special offense, the acceptance of advantages can only be committed by office bearers pursuant to Sec 74 para 1 no 4a lit b StGB or adjudicators. Office bearers are primarily persons who are appointed by the federal government, a province, an association of municipalities, a municipality or another person under public law to carry out legal acts as their governing body or who are otherwise entrusted with federal, provincial or municipal administration tasks (for more information on the concept of office bearers, see our article on bribery).
Carrying out or omitting to carry out a dutiful official act
In contrast to passive bribery (Sec 304 StGB), which is punished more severely, the intended performance or omission of the official transaction in the case of acceptance of an advantage must be dutiful, which is why the offense is also punished more leniently than bribery. In summary, acting in accordance with one’s duty takes into account all applicable regulations and legal provisions in the specific situation.
Advantage
The central element of accepting an advantage under Sec 305 StGB is that the office bearer demands an advantage or accepts an undue advantage or accepts the promise of such an advantage.
Advantages that are not improper and therefore permitted under Sec 305 para 4 StGB are
- benefits that can lawfully be accepted or that are provided in the context of events in which there is an official or factual interest to participate,
- advantages for charitable causes if the office bearer or adjudicator has no particular influence on their use, as well as
- absent any provisions permitting the advantage, local or customary courtesies of small value, unless the offence is committed commercially.
Legal permission standards (no 1) can be anchored in the entire legal system. Events in the participation of which there is an official or objectively justified interest can be, for example, congresses, conferences, exhibitions or trade fairs that serve professional or political representation.
Advantages for charitable purposes (no 2) are not improper if the office bearer or the adjudicator or a person from the family circle of the office bearer or the adjudicator does not have a determining influence from its use. The main area of application of this factual restriction is essentially the area of cultural and sports sponsorship. Gifts of low value that are customary in the locality or country (no 3) are not undue advantages unless the perpetrator acts commercially (Sec 70 StGB). Small gifts with a value of less than EUR 100 have a low value, but must also be “customary in the locality or country” in order not to constitute an undue/improper advantage.
Giving an advantage (Sec 307a StGB)
Anyone who offers, promises or provides an undue advantage to an office bearer, adjudicator or to a third person in return for the lawful execution or omission of official duties be the office bearer or adjudicator is liable to prosecution for granting an advantage under Sec 307a StGB.
The offense therefore punishes the offering, promising or granting of an undue advantage for the dutiful performance or omission of an official act. In contrast to accepting an advantage, the offense of granting an advantage is a general offense that can be committed by anyone.
Impending penalties
The basic penalty for accepting an advantage and granting an advantage is a prison sentence of up to two years in each case. If the value of the advantage exceeds EUR 3,000, the penalty is imprisonment for up to three years. However, anyone who commits the offense with regard to an advantage worth more than EUR 50,000 is liable to a prison sentence of six months to five years. If the value of the advantage exceeds EUR 300,000, the offender is liable to a prison sentence of between one and ten years.
Examples of acceptance and granting of advantages
The following examples illustrate the boundaries between permissible and impermissible granting of advantages in various situations of practical relevance.
- If a police officer accepts a bottle of wine from the rescued family as a thank you for the good assistance provided in an accident, this is generally to be regarded as a low-value gift customary in the locality and country (depending on the value of the bottle of wine). However, the promise of such a gift by a public prosecutor in return for a diversion offer is not and can therefore fall under the offense of accepting advantages under Sec 305 of the Criminal Code (StGB).
- Anyone who offers, promises or grants a vacation trip to an employee of a public authority for the issue of a certain (legally unobjectionable) decision commits the criminal offense of granting an advantage in accordance with Sec 307a of the Criminal Code (StGB) if there is corresponding intent. It is irrelevant whether the offered advantage (vacation trip) is accepted by the office bearer or not, because the offering of the corresponding advantage is already punishable.
Tips for compliance measures for prevention
Preventive Consulting & ComplianceIn order to prevent corruption offenses, it is important to rely on anti-corruption compliance measures. The implementation and consistent enforcement of clear compliance guidelines can ensure that the legal requirements within a company or authority are adhered to. If employees are provided with guidelines at an early stage that contain specific practical examples of which gifts can be accepted or granted without any problems and which advantages pose an increased risk of criminal liability, employees are made aware of the issue and potential uncertainties are eliminated.
In addition, employee training courses can help raise awareness of the risks of corruption and provide employees with the tools they need to prevent corresponding criminal offences. Expert lawyers can provide detailed information on the legal framework and specific risk analyses for the company in question. It is also advisable to establish an internal whistleblower system to enable employees to report possible cases of suspicion.
