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The CSU politician and lawyer Alfred Sauter enters the meeting of the "Mask" investigative committee in the Bavarian state parliament
Photo: Peter Kneffel / dpa
Actually, the matter is clear: "Abusive influence" on official decisions should be a punishable offense - namely when, for example, a politician uses his authority or his contacts for money to obtain an unjustified advantage for the instigator from an authority.
For example, if a member of parliament is paid handsomely by a friend of his who is an entrepreneur for conveying his FFP2 masks to the respective Ministry of Health.
Criminal liability for such “trafficking” is provided for in two international treaties, the United Nations Convention against Corruption and the Council of Europe Criminal Law Convention on Corruption.
Germany ratified both agreements, the first in 2014 and the second in 2016.
According to this, both the member of the Bundestag Georg Nüßlein and the member of the state parliament Alfred Sauter (both CSU) could be seriously considered to be criminally liable.
In the first phase of the corona pandemic, both had brokered masks to the federal government and the Bavarian state government - and received lavish commissions for this: A GmbH, whose managing director is Nüßlein, received 660,000 euros;
a company over which Sauter has a significant influence even more than 1.2 million euros.
At the beginning of March 2020, two private entrepreneurs approached Nüßlein and Sauter, who they knew personally, with the suggestion, as the Federal Court of Justice (BGH) now put it, "to use their authority and influence as a member of the federal or state parliament for a fee".
Nüßlein and Sauter agreed to this, and accordingly "they contacted decision-makers from various federal and state authorities and worked towards the conclusion of purchase contracts for protective masks (mouth-nose covers)", as the BGH put it.
Nüßlein appeared to the authorities as an "Member of the Bundestag", i.e. as a member of the Bundestag, and deputy chairman of the CDU/CSU parliamentary group.
The former Bavarian Minister of Justice Sauter sent corresponding e-mails under the e-mail address of one of his two law firms.
However, he also used a signature with the abbreviation "MdL", i.e. a member of the state parliament, on several occasions.
"Handling of influence" could hardly be more obvious.
And yet the Federal Court of Justice (BGH) decided on Tuesday of this week that the CSU politicians are allowed to keep their six-digit commissions.
Unfortunately, the federal legislature has "not yet transposed the corruption offense of exerting influence, which is provided for in the international treaties, into German law".
This is more than accidental negligence.
As the case of Nüßlein and Sauter shows, it is a scandal.
There is paragraph 108e in the German penal code, a penal provision that regulates the "bribery and bribery of elected officials".
Unfortunately, it falls short in the present mask brokerage business, according to the BGH: Because corruption by a member of parliament is only punishable if it involves actions "while exercising his mandate".
And the BGH - like the Munich Higher Regional Court and the Federal Prosecutor's Office before it - only counts "acting in Parliament, i.e. in the plenum, in the committees or other parliamentary bodies including the parliamentary groups or in commissions made up of MPs".
On the other hand, the fact that the mandate holder merely refers to his status in order to influence official decisions in the interests of a private entrepreneur is not enough to make him liable to prosecution.
One could also see it differently.
The former BGH criminal senate chairman and SPIEGEL columnist Thomas Fischer, for example, points out in his commentary on the German Criminal Code that "performing the mandate" in any case "in the literal sense without a doubt" also exists "when a member of parliament outside of his parliamentary 'competence' is in the vicinity to political decision-makers in order to enforce foreign interests 'as ordered'".
When interpreting laws, not only the wording but also the will of the legislature must be taken into account.
The BGH is doing this here and in its press release – the written reasons for the judgment are not yet available – to an apparently clear result.
The legislature "deliberately" refrained from "recording purely extra-parliamentary activities of the mandate holder".
From the point of view of the Munich Higher Regional Court, however, the draft law submitted by the CDU/CSU and SPD was “not clear” on this point.
In the synopsis of all legislative material - especially the Committee on Legal Affairs and Consumer Protection - both courts come to the same conclusion: the existing penal provision is to be understood narrowly, the high-dose use of "vitamin B" by members of parliament is not punishable in Germany.
The fact that the Federal Republic is lagging behind international agreements is formally okay.
Because the provision on "trafficking" in the United Nations Convention is not binding.
The corresponding provision in the Council of Europe Convention, on the other hand, is.
Here, however, the Federal Republic prudently declared a so-called reservation during the ratification, i.e. announced that it did not want to commit itself on this point;
there is therefore no formal implementation obligation here either.
What signal the Federal Republic is setting is another question.
Even if Germany is not alone in failing to implement these standards internationally, the answer can be summed up with the short answer: It's not a good thing.
And it is even more alarming when Parliament, and thus the legislature, exempts its members from criminal liability for corruption outside of the close parliamentary activities and thus encourages unclean business, the criminal liability of which is at least recommended internationally.
Nüßlein and Sauter have received exorbitant commissions for arranging mask shops.
And that at a time when many citizens, companies and organizations were taking on serious restrictions in order to get the pandemic under control.
That's a shame.
The existing bribery clause for MPs is the same.
The criminal liability of the abuse of influence by elected officials is international law.
It should finally become law in Germany too.
