On August 31, 2023, the German Federal Court of Justice (BGH) issued a widely noted appellate decision concerning the provision of complimentary tickets by a concert promoter to a public authority responsible for organizing a Rolling Stones concert in Hamburg (judgment of August 31, 2023 – 5 StR 447/22). The court overturned the earlier judgment by the Hamburg Regional Court of April 8, 2022 (Case No. 622 KLs 4/20) and referred the case back for retrial before a different chamber of the same court.
During negotiations between the promoter and the Hamburg-Nord District Office, the promoter delivered or promised 100 complimentary tickets with a total value of €14,743.90 and 300 ticket purchase options.
The allegations included bribery, corruption, and breach of trust.
Against this backdrop, the BGH ruling addresses fundamental questions regarding the criminal liability of so-called third-party benefits granted to the public employing authority itself (in this case, the district office) in the context of public law contracts. The judgment illustrates how early the suspicion of improper influence can arise. Remarkably, the BGH also acknowledged that providing such tickets may, under certain conditions, be considered a permissible form of performance and counter-performance.
The decision thus provides valuable guidance for structuring public law agreements involving third-party benefits.
The Appearance of Corruptibility as a Criminal Risk
Even the mere appearance of a decision being swayed by external benefits may suffice to trigger criminal liability under §§ 331 and 333 of the German Criminal Code (StGB). The legal distinction between:
- the so-called “relaxed” unlawful agreement, where the intent is merely to foster goodwill (§§ 331, 333 StGB), and
- the “true” unlawful agreement aimed at the purchase of a specific, unlawful official act (§§ 332, 334 StGB),
is difficult to apply in practice, often unpredictable, and therefore presents a high-risk area for both citizens and businesses.
In addition, criminal liability for bribery or corruption can also arise where an official merely shows willingness to be influenced in the exercise of discretion by a benefit. Such conduct may readily be construed as a legally relevant “putting a benefit on the scales.”
Third-Party Benefits under Section 56 of the German Administrative Procedure Act (VwVfG)
A central aspect of the decision concerns the 100 complimentary tickets (delivered to the district office via delivery note!) which the court evaluated as a potential third-party benefit.
The BGH made clear that such benefits are not inherently unlawful. However, their permissibility depends on the existence of a lawful public law agreement within the meaning of §§ 54 ff. of the VwVfG. The administrative law compliance of the underlying contractual structure is the decisive factor.
Particular attention must be paid to the “tie-in prohibition” (Kopplungsverbot) under § 56 VwVfG, which prohibits making official acts conditional on additional economic benefits. A tie-in is only permissible if the consideration serves a specific purpose that
- serves a legitimate public purpose,
- is factually related to the official performance, and
- is reasonable in amount.
Additionally, the requirement of written form under § 57 VwVfG must be satisfied.
Representation or Advantage? Assessing Complimentary Tickets
The ruling also offers important insights into the legal evaluation of complimentary tickets granted for representational purposes. Depending on the official’s role, the event, ticket value, and context, acceptance may be permissible. However, superior approval (“Dienstherrengenehmigung”) should always be considered.
Practical Compliance Guidelines
The judgment gives rise to specific compliance-related requirements that go beyond the individual case and provide structural guidance for day-to-day compliance practice in dealings with public authorities, particularly when entering into public law contracts.
- Examine public official status: Not all public officials are readily identifiable by title (see Section 11(1)(2)(c) StGB – “administrative private law”). § 11 Abs. 1 Nr. 2 c) StGB – “administrative private law”).
- Low-value thresholds: Even minor advantages may be criminally relevant, particularly when cumulatively assessed.
- Contractual safeguards: Third-party benefits are only permissible when authorized by a lawful public law contract. A targeted criminal law review is advisable.
- Internal transparency: Early involvement of oversight bodies, specialist authorities, or higher-level entities enhances legal certainty.
- Complete documentation: Reasons, parties involved, purpose, and scope of the benefit must be traceable.
- Arm’s-length comparison: Measures must meet industry standards.
- Legal review: When in doubt, seek external legal advice. Only then can those involved rely on the defense of “inevitable mistake of law” (§ 17 StGB).
- The “newspaper test”: Ask yourself, “How would my actions seem if they appeared in the press?”
- Legal dynamics: Stay informed about court decisions and legislative changes.
- Compliance culture: Ongoing training and awareness-raising are essential.
Conclusion
The BGH ruling emphatically underscores that criminal liability risks may arise well before any blatant misuse of official authority. Often, the mere circumstances of how a benefit is offered or accepted can suffice to raise the suspicion of improper influence.
For public administration and municipal enterprises, the best protection lies in a legally sound, preventive review of public law contracts, along with transparent documentation of all relevant circumstances and proactive disclosure to supervisors or oversight authorities.
This article is based on a lecture delivered by our partner Dr. Oliver Pragal at the meeting of the Compliance Network of Public Enterprises of the Free and Hanseatic City of Hamburg on April 22, 2025.
