The Berlin judiciary is examining investigations against Finance Minister Lindner. “Taking advantage” would be the accusation. This is tricky as a criminal offense for laypeople. Because unlike theft, burglary or property damage, the offense is not immediately obvious. It was “only” a gift, an allowance given and accepted. Lawyer and compliance expert Christian Pelz explains to ntv.de what makes a gift a crime.
ntv.de: In the case of Christian Lindner, the case is very special: BBBank did not give the minister a gift, but granted him a loan. The bank also benefits from this, and a business relationship was established. What would the contract have to be like in order for it to be considered as an acceptance of an advantage?
Christian Pelz: The suspicion of granting an advantage would be much more obvious if the conditions were unusually good. However, one would have to prove that by granting the loan the bank wanted or achieved some ministerial action by Lindner. That hurdle will be high.
The public prosecutor’s office would have to take it in any case?
Yes, if the bank grants Christian Lindner a loan because that’s their line of business or because they like to adorn themselves with a minister as a customer, then that’s not punishable. In Lindner’s case, however, based on the reporting so far, I can only recognize the greeting as finance minister as a ministerial action. This could be an official consideration. Proof of a connection between the granting of the loan and the willingness to give such a greeting would then be necessary.
Professor Christian Pelz is a specialist lawyer for criminal and tax law, a partner at the commercial law firm Noerr and a compliance expert at the e-learning provider lawpilots.
What could this connection look like?
It could be an indication if, for example, Mr. Lindner had rejected comparable inquiries from other companies in the same period and only received a word of welcome from BBBank.
To understand what taking advantage means exactly, the following example: A police officer stops a cyclist who is driving without lights. She says: “I could take 40 euros from you now, but I’ll turn a blind eye.” And the cyclist says, “That’s so nice, take this box of chocolates as a thank you.” Is that problematic?
This is problematic. The police officer’s decision as to whether or not to give him a warning or a fine is an official act. If the cyclist gives her chocolates as a reward for an official act, the connection to the official activity is there. That’s taking advantage.
Even though she had already decided and the cyclist only gave her the chocolates afterwards?
In the corporate sector, this circumstance would be important for the question of whether corruption exists: Is there a reward for behavior from the past or should the chocolates be used to create an incentive for behavior in the future? It’s different with officials. The connection to the official act is sufficient, whether this was performed beforehand is irrelevant.
Another situation: the cyclist meets the policewoman and his bike is in top condition. Because the sun is shining so beautifully, he gives her a box of chocolates. acceptance of benefits?
That would be permissible in principle because the cyclist has no intention – neither to reward what the police officer has done nor to encourage her to behave in the future. It would still be a bit risky, because nobody believes that someone gives chocolates to the police without an intention behind it. It would have an “evil appearance”. In principle, however, it would be permissible.
Now let’s say two months later the two meet again and now he has no light but she waves him through. Would that be an acceptance?
In that case we are back to the question of how to prove it. If there is no connection, there is no penalty. But the proximity in time between the gift of chocolates and the decision a few weeks later not to do something the police officer might otherwise have done complicates matters. One could assume that waving through was a consideration for the chocolates from back then and thus a punishable granting of an advantage.
What applies to the policewoman also applies to the finance minister?
Both are officials, yes. However, a connection must be demonstrable between the granting of benefits and any activity that one performs in the office.
When accepting an advantage, does the recipient have to prove that there is no connection with official work?
No, the public prosecutor’s office has to prove that the benefit for an official act was obtained. However, the burden of proof is reduced.
In what sense?
The public prosecutor’s office would not have to prove what specific consideration the official should provide; it is sufficient that there is a connection with one of several possible activities. So, as a public prosecutor, I don’t have to say it has to do with law X or decision Y, but suffice it to say that it will certainly have been one of five ministerial decisions that could be considered.
But this handful of options would have to show the prosecution where there could be a meaningful connection?
The public prosecutor’s office needs these options. If the acceptance of the loan were only a private activity of Mr. Lindner, which is not related to the ministerial office, then that would not be sufficient.
Would the connection also have to be proven on the basis of agreements?
Not necessarily. The facts would be sufficient if a judge is convinced on the basis of the circumstances of the individual case that either the donor intended to grant the minister an advantage for an official activity, or if Mr. Lindner, upon accepting the advantage, would have had the impression that the Bank would want to reward or initiate a certain behavior as a minister.
Are giver and taker always both on the hook when accepting an advantage is proven?
If both have recognized or at least expected that the benefit will only be given with regard to an expected official action by the recipient, both are on board. If the judge comes to the conclusion that given the level of education and experience of the recipient, he must have recognized that the grantor expects something in return in his capacity as a minister, then that is enough for a conviction. With very usual behavior….
…. For example, with a loan at market conditions, as Lindner’s lawyer says ….
…. but this would be far away and would also be difficult to prove.
FDP party leader Wolfgang Kubicki has complained that the Berlin public prosecutor’s office has requested that Lindner’s immunity be lifted in order to begin investigations. Is that true, did the prosecutors take this high-profile step without necessity?
For preliminary investigations, i.e. the examination of whether there is any initial suspicion that Lindner’s behavior could be punishable, one would not have needed this step, Mr. Kubicki is right. Based on the publicly available information, one would decide whether there would be any suspicion of a corruption offense in any constellation. Only if I could affirm that as a public prosecutor would I initiate proceedings and only then would I need the immunity to be lifted.
Frauke Niemeyer spoke to Christian Pelz