Germany has several authorities responsible for corruption prevention and prosecution, which include the Federal Ministry of the Interior, Building and Community, Federal Ministry of Justice and Consumer Protection, Supreme Audit Institution, Financial Intelligence Unit, Federal Office for Justice, Federal Criminal Police Office, and the competent authorities (prosecution offices and courts) of the federal states. Some Länder have specialised prosecution offices on corruption offences, others have specific corruption-related expertise distributed across all prosecution offices. The Directive concerning the Prevention of Corruption in the Federal Administration provides the legal framework as regards the prevention. It is complemented by detailed guidelines and comprehensive codes of conduct, which aim at preventing corruption at federal level.

The German justice system is mostly performing efficiently, although some indicators have been showing a decline in overall performance. First instance courts in litigious civil and commercial cases largely manage to deal with their workload, as indicated by a clearance rate close to 100%. However, in 2018, the clearance rate fell to 97.2% . The length of proceedings in first instance litigious civil and commercial cases has been steadily increasing since 2012 . This has also been indicated by stakeholders . Administrative courts mostly perform efficiently, in particular at third instance where the time needed to resolve cases is considerably lower than in first and second instance administrative courts . However, administrative courts have seen a comparatively high level of incoming cases , which is also reflected in a comparatively high number of pending cases .

To strengthen the justice system and the rule of law, Germany is implementing a ‘Pact for the Rule of Law’ , which includes additional resources, both at the federal level and the level of the Länder. The federal level and the Länder on 31 January 2019 agreed on a ‘Pact for the Rule of Law’. The latter foresees additional funding of EUR 220 million from the federal level for the Länder to create 2000 additional posts for judges and prosecutors, including the necessary administrative staff by 31 December 2021. In addition, the federal level is creating, within its competence, 24 additional posts at the Federal Court of Justice and 71 posts at the Prosecutor General of the Federal Court of Justice to strengthen the justice system . The ‘Pact for the Rule of Law’ is perceived very positively by stakeholders, in particular the German Association of Judges and Prosecutors, as it responds to long-voiced demands to strengthen resources in the justice system , which is also relevant in view of the expected additional challenges related to the upcoming wave of retirements.

The justice system will see an elevated number of judges and prosecutors reaching retirement age in the coming years. Both authorities and stakeholders indicated that in many Länder, particularly in the eastern parts, upcoming retirements will increase significantly over the next years. This will require the attention of both Ministries of Justice and Finance to ensure that sufficient numbers of new judges and prosecutors are recruited. Stakeholders have voiced some concerns on what is considered a lack of competitive entry grade salaries for new judges and prosecutors, in particular when compared to private practice, which increases the difficulties to attract sufficient numbers of qualified graduates for the courts and prosecution services . This challenge may be more pronounced in some parts of the country, given that salary levels can differ between the Länder up to 17% .

Digitalisation of the court system is advancing, but remains a longer-term challenge. On 1 January 2018, the Act on the Introduction of Electronic Files in the Judiciary and the further Improvement of Electronic Legal Communication came into force. According to this law, courts and public prosecutors will be obliged to keep court files and procedural files exclusively as electronic files from 1 January 2026 at the latest. Stakeholders explained that currently the use of IT-tools may differ from one court to another, regardless of the federal state . The Länder are engaging in three large-scale networks to implement the full digitalisation of court files (‘elektronische Akte’) . The federal level is participating in some of these networks, depending on the respective federal court. Further digitalisation will reinforce the efforts to promote the quality of the justice system. In particular, Germany provides for arrangements for producing machine-readable judicial decisions, the promotion of and incentives for using Alternative Dispute Resolution methods, arrangements that make the justice system more child-friendly, training for judges, as well as the use of and follow-up on court users’ surveys . However, Germany appears to have comparatively high court fees for certain categories of cases, such as low-value consumer claims or specific commercial cases involving a cross-border element .

The right of Ministers of Justice to instruct prosecutors in individual cases is under discussion. An amendment to abolish this right had been proposed as a reaction to the judgment of the Court of Justice of the European Union concerning the application of the European Arrest Warrant , which found that German public prosecutor’s offices do not provide a sufficient guarantee of independence from the executive for the purposes of issuing a European Arrest Warrant. This amendment was rejected by the Federal Parliament on 28 May 2020 . Structurally, the prosecution services form part of the executive. Therefore and as stipulated in the relevant provisions of the Law on the Judicial System , the Ministers of Justice of the Länder and the Federal Minister of Justice have the possibility to give instructions to prosecutors in individual cases. This power is subject to legal safeguards. In addition to the principle of legality , which circumscribes any action of prosecution services, and the constitutional principle of the rule of law , there are additional safeguards at federal and Länder level . The overall effect is to ensure that any instructions in a specific case cannot in any event exceed the limits of the law . Moreover, both authorities and stakeholders explained that only in very rare cases this right of instruction is actually exercised . This practice, combined with the legal safeguards in place, appears to mitigate the risk of misuse of the right of instruction .

The perceived independence of courts and judges among the general public and companies remains high. Overall, 76% of the general population and 73% of companies perceive the level of independence of courts and judges as ‘fairly or very good’ . This high level of perceived judicial independence has remained stable over the last years . This was also confirmed by stakeholders such as the German Association of Judges and Prosecutors, the German Bar Association and the German Federal Bar . The independence of the German justice systems is ensured by multiple safeguards, which include in particular judicial control over the legality of any decision relating to the judiciary, such as appointments, professional appraisals, promotions, disciplinary sanctions and dismissals . Furthermore, the German justice system contains a number of elements of judicial self-administration .

The court system in Germany is structured in a federal manner. Jurisdiction is exercised by federal courts and by the courts of the 16 federal states (‘Länder’). The main share of competence and workload regarding the administration of justice lies with the Länder. The court structure is divided between the ordinary jurisdiction and specialised courts. The ordinary jurisdiction consists of the civil and criminal jurisdiction. The specialised courts are the administrative courts, the finance courts, the labour courts and the social courts. The courts of the Länder are generally administered by their respective ministries of justice. Appointment of judges and prosecutors, except for the federal courts, falls within the competence of the Länder. While appointment procedures differ in detail between the Länder, all share common core elements, in particular the principle of merit (Leistungsprinzip) and the judicial review of the process and decision relating to appointment. For the Federal Courts, a judges’ selection committee (Richterwahlausschuss) selects judges for appointment by the executive and Councils of judges (Präsidialräte) of the relevant courts have to be consulted in this process. There are currently 638 local courts, 115 regional courts and 24 higher regional courts as part of the ordinary jurisdiction. There are further 51 administrative courts, 15 higher administrative courts, 18 financial courts, 108 labour courts, 18 higher labour courts, 68 social courts and 14 higher social courts across the 16 Länder . At the federal level, the Federal Minister of Justice is responsible for the Federal Court of Justice, the Federal Administrative Court and the Federal Finance Court. The Federal Ministry of Labour and Social Affairs is responsible for the Federal Labour Court and the Federal Social Court. Constitutional review is ensured by the Federal Constitutional Court and the constitutional courts of the Länder. The prosecution services in Germany are part of the executive, at federal level with the Prosecutor General at the Federal Court of Justice. At the level of the Länder, each has its own public prosecution service. There are 27 regional Bars in Germany . The umbrella organisation of all 28 Bars in Germany is the German Federal Bar in Berlin.

The system of checks and balances is well established. An impact assessment framework and the involvement of stakeholders contribute to the quality of the legislative process. Constitutional review takes place at both the federal level as well as at the level of the Länder. An enabling framework for civil society and a policy for making information accessible to citizens are in place. Civil society organisations can operate freely in Germany. Regular discussions on rule of law topics, both from a domestic as well as an European perspective, are promoted, including through a nationwide information and publicity campaign conducted in 2019 in the context of the ‘Pact for the Rule of Law’, focussing on communicating the significance of the rule of law and the guarantees it provides for the individual citizen as well as for a democratic society.

Germany has well-established regulation on media freedom and pluralism, which mostly falls under the competence of the Länder. The fourteen media regulatory authorities are public agencies, with a legal guarantee of independence from political and commercial interference. Transparency of ownership of media outlets is high and safeguards are in place to prevent political interference with the media. The constitution and secondary legislation expressly guarantee the right of journalists to protect the confidentiality of their sources and regulate the right of access to information. In recent years, some concerns about increasing attacks on journalists have arisen.

The legal, regulatory and institutional anti-corruption framework is broadly in place, with the implementation of repressive anti-corruption policies and criminal cases prosecution lying with the Länder. A ‘revolving doors’ policy exists at the federal level and in most Länder. As regards lobbying, the mandatory registration of contacts with both members of the Federal Parliament and members of the Federal Government is missing, although reforms in this area are being considered. Whistleblowers protection in Germany relies on a system which is integrated within businesses, allowing for people to rely on a reporting channel which is additional to the institutional one.

The German justice system is characterised by the country’s federal structure and the important role of the Länder in the administration of justice. The level of perceived judicial independence is high. Safeguards for the independence of prosecutors have recently been under discussion. The German justice system is mostly performing efficiently, although some indicators have been showing a decline in overall performance. Particular efforts are ongoing to further develop the digitalisation of the justice system, which would contribute to enhancing its efficiency and quality. The 2019 ‘Pact for the Rule of Law’ between the federal level and the federal states will lead to additional funding for the justice system and the creation of 2000 new posts for judges and prosecutors by end-2021. This is also relevant in view of the increasing number of judges and prosecutors who will retire in the coming years.

Germany scores 80/100 in the Transparency International Corruption Perception Index and was ranked 5th in the European Union and 9th globally. 53% of respondents to the 2020 Eurobarometer on corruption consider corruption widespread in their country (EU average 71%) but only 9% of people feel personally affected by corruption in their daily lives (EU average 26%). As regards businesses, 31% of companies consider corruption to be widespread (EU average 63%). According to the surveys, 22% of companies consider that that corruption is a problem when doing business (EU average 37%). 33% of people find that there are enough successful prosecutions to deter people from corrupt practices (EU average 36%) while 41% of companies believe that people and businesses caught for bribing a senior official are appropriately punished (EU average 31%).

Germany has a comprehensive institutional framework to fight corruption. The federal anti-corruption institutional framework comprises the Federal Ministry of the Interior, Building and Community, the Federal Ministry of Justice and Consumer Protection, the Supreme Audit Institution and the Federal Criminal Police Office. A network of contact persons for corruption prevention has also been established, which the OECD has labelled as ‘good practice’ at the international level . These contact persons provide citizens and employees with assistance and advice for corruption-related questions or concerns .

The implementation of repressive anti-corruption policies and criminal cases prosecution lies with the Länder. The official police report on corruption reports 4 894 police-registered corruption cases in 2017 . Compared to the previous year, this is a decrease of 25 %. The number of suspects, however, increased by 15%. The financial damage caused through corruption amounted to EUR 291 million, which represent an increase of 137%. Some Länder have specialised prosecution offices on corruption offences, others have specific corruption-related expertise distributed across all prosecution offices. As regards foreign bribery investigations, the country has been evaluated as one of the highest enforcers of the Anti-Bribery Convention .

Germany has a thorough regulatory framework to prevent corruption. The prevention framework of corruption is included in several provisions at both federal and state level. The Directive concerning the Prevention of Corruption in the Federal Administration (CPD) provides the legal framework as regards the prevention of corruption in the Federal Government. Its implementation is monitored by different bodies, such as the leading unit within the Federal Ministry of the Interior and the Federal Court of Audit. A revision of the CPD is currently foreseen by the Federal Ministry of Interior. The CPD is complemented by detailed guidelines for implementations (Code of Conduct, Guide for Superiors and Public Authorities, Focus on Risk Assessment). In addition, ministries develop their own implementation guideline (Umsetzungsrichtlinie).

Germany has put in place integrity and prevention measures for civil servants and public employees. Rules governing contacts with third parties, the acceptance of gifts, secondary employment and post-employment activities are contained in the Code of Conduct against Corruption and the Guide for Principals and Heads of Administration, further backed up by provisions in the Criminal Code, the Act on Federal Civil Servants and the Federal Civil Servant Status Act and the Collective Agreement for the Public Service (TVöD). Bribery offences are broadly defined and in particular, criminal liability can be triggered by the mere acceptance of gifts .

Rules on conflicts of interest and asset declarations for members of the Federal Parliament have been revised. Disclosure of remunerated side activities and other outside ties with respect to members of the Federal Parliament is governed by the Act on Members of the Federal Parliament , the Code of Conduct for Members of the Federal Parliament and the Provisions Implementing the Code of Conduct for Members of the Federal Parliament . Most Länder require the disclosure of remunerated activities for the members of the parliament, which are not prohibited, but some Länder are still missing legislation in this regard . As regards financial interests and contracts with state authorities, there is no prohibition or restriction on the holding of financial interests by members of the Federal Parliament or on them entering into contracts with state authorities . Members of the Federal Parliament must disclose their shareholdings, however only if they exceed 25% of the voting rights in a company. The number of staff of the administration of the Federal Parliament responsible for monitoring conflict of interests and asset declarations was increased in 2019. GRECO noted the need to strengthen the resources to allow for an effective check on the implementation of the rules . As regards members of the Federal Government, relevant provisions are contained in the Act governing the legal status of the members of the Federal Government . Under this Act, members of the Federal Government cannot hold secondary positions and they have to declare gifts received in relation to their office . The disclosure of assets and properties is not regulated. Similarly, for member of the federal parliament, the possession of assets or financial interests is not subject to notification.

A policy to regulate ‘revolving doors’ exists at the federal level and in most Länder. A legal cooling-off period was introduced in 2015 for outgoing Federal Chancellors, Ministers and Parliamentary State Secretaries. Current and former members of the Federal Government must notify the Federal Government if they intend to work outside the public sector within 18 months of leaving the Federal Government. Parliamentary State Secretaries shall make the notification to the Member of the Federal Government responsible . Some Länder have also introduced cooling-off periods. Overall, such provisions are in place in seven Länder, whereas discussions on their introduction are ongoing in three .

Lobbying is regulated in different rules governing contacts with third parties for members of the Federal Parliament, federal ministries and civil servants of the federal administration. As regards contacts between members of the federal parliament and lobbyists, Germany does not have a lobby register yet. A public list is maintained by the President of the Federal Parliament and representatives of associations lobbying the Federal Parliament or the Federal Government shall only be heard by the Federal Parliament committees if they have entered themselves therein. However, registration is on a voluntary basis and foresees a registration obligation only for representatives of associations, which do not include enterprises, self-employed lobbyists and other categories . As regards civil servants in the federal administration, the Corruption Prevention Strategy contains guidelines for contacts between civil servants and third parties.

Whistleblower protection provisions and reporting procedures for whistleblowers exist in various sector-specific laws. Under the current rules, there is for example an obligation to establish reporting channels for receiving and handling certain information from whistleblowers in the health sector . Moreover, many companies have put in place whistleblower protection systems, following recommendations of the German Corporate Governance Codex . Stakeholders have raised concerns with regard to the risk of an insufficient level of protection for whistleblowers, depending on the applicable set of laws.

III.Media Pluralism

Freedom of expression, freedom of the press and the right to information are guaranteed in the Constitution (Basic Law) . The independence of the fourteen media authorities is enshrined in interstate treaties at a national level and in state-specific broadcasting and media acts of the Länder . German law provides for transparency rules requiring the disclosure of ownership in the news media sector and the disclosure of any involvement in media entities by political parties.

Content-related media regulation is a matter of competence of the Länder. Private radio and television broadcasters are regulated by the 14 different independent state regulatory authorities (Medienanstalten), who are responsible for granting licences, allocating frequencies and supervising private radio and television broadcasters . They monitor compliance with advertising rules and provisions on youth protection, and promote projects to enhance media literacy. They further support the introduction of new broadcasting technology and contribute to securing diversity in private broadcasting . The fourteen media authorities are public agencies, with a legal guarantee of independence from political and commercial interference. They have wide regulatory powers at their disposal and their decisions may be challenged before administrative courts. According to the Media Pluralism Monitor 2020 (‘MPM 2020’), the indicator on independence and effectiveness of the media authority scores at very low risk in Germany .

The German Press Council is a self-regulatory body founded by media publishers . The effective implementation of the Basic Law, which guarantees the freedom of the press and prohibits censorship, ensures the independence of the press and its self-regulatory bodies from political interference. The Press Council is organised as a registered association comprised of two publishing and two journalist organisations: German Newspaper Publishers Association (BDZV), German Federation of Journalists (DJV), German Journalists Union (dju) within the German United Trade Services Union (dju in ver.di) and the Association of German Magazine Publishers (VDZ). Through addressing complaints about press behaviour, the Press Council monitors compliance with the ethical rules for the daily work of journalists laid down in the German Press Code and may publicly reprimand the respective press outlet for breaching the press code. The work of the Press Council is financed from contributions from member associations and the board of complaint is funded by the German Federal Government.

As regards transparency of ownership, German law contains specific provisions requiring the disclosure of ownership in the media sector . Commercial broadcasters must report ownership information in order to apply for and hold a broadcasting license and they must report on plans affecting the shareholders’ structure. Online media entities have to make their ownership information transparent via its imprint information on their websites. For the press, these transparency obligations for imprints are stipulated in the respective state press laws. Political parties must disclose their involvement in media entities in accordance with the Act on Political Parties Act of 1967 . According to the Media Pluralism Monitor 2020, the indicator on transparency of media ownership scores low on the risk scale .

Germany has functioning safeguards against the formal control by political parties over the media. The indicator on political independence of media scores at a low risk . The Interstate Treaty on Broadcasting and Telemedia generally prohibits advertising of a political, ideological or religious nature in radio, television and video-on-demand services . Political advertising is only allowed during elections periods, where airtime must be given to all parties participating in the election according to the principle of equal opportunities . Airtime for political adverts is free of charge and no additional airtime can be purchased. The distribution of online political advertising (beyond video-on-demand-services) is currently not regulated. However, the new Interstate Treaty on Media will include a transparency provision on political advertising. Politicians and parties commonly do not report on their spending for advertising on online platforms.

The framework for the protection of journalists is in place although there are some concerns about increasing attacks on journalists. The framework for the protection of journalists is defined by the freedom of the press and broadcasting freedom guaranteed under the Basic Law . This is further complemented by the relevant press and media acts of the Länder. Journalists have the right to protect their sources and refuse to testify in criminal, civil and administrative cases. Based on a legitimate interest, the right of access to information is guaranteed by the Constitution and access to Federal Government information is regulated by the Freedom of Information Act. Thirteen Länder have enacted similar frameworks. Journalists are protected against criminal offenses based on the criminal laws applicable to all citizens. Currently, there is no specific law in Germany to protect journalists from crime or to investigate the relevant crime. Police crime statistics do not evaluate attacks on journalists separately, but account for criminal offenses against media in general. Nevertheless, the German authorities consider that a separate law for the protection of journalists and a separate record of attacks do not appear to be necessary against the background of the available statistics on the extent of the problem . In Germany defamation may be punished with imprisonment, though it has to be noted that this occurs only very rarely in practice . According to the Media Pluralism Monitor 2020, the overall basic protection indicators relating to the journalistic profession, standards and protection demonstrates a low risk. However, the relevant Media Pluralism Monitor 2020 indicator on physical safety shows a high risk. Reporters without Borders stated that in 2018, at least 22 and in 2019 at least 13 violent attacks on journalists were reported . In 2019 and 2020, the Council of Europe Platform to promote the protection of journalism and safety of journalists published five alerts for Germany, concerning cases of attacks on the physical safety, harassment and intimidation of journalists and other acts having chilling effects on media freedom .

IV.Other Institutional Issues related to Checks and Balances

Germany is a federal, democratic republic comprised of sixteen federal states (Länder). Power is distributed between the federal and state Governments. The separation of powers is enshrined in the Basic Law and the constitutions of the Länder. At the federal level, federal legislative power is vested in the Federal Parliament (Bundestag) and the representative body of the Länder (Bundesrat) . The Government, the Bundesrat or members of the Bundestag can submit legislative proposals. The German Human Rights Institute and the Federal Anti-Discrimination Agency contribute to upholding fundamental rights.

Conducting impact assessments and consulting stakeholders are established practices for enacting legislation. In Germany, a national better regulation body exists since 2006, to advise the Federal Government on these issues. To strengthen transparency of the legislative process at the federal level, the Federal Government decided in November 2019 to publish all stakeholder contributions concerning federal legislative proposals online. This development was also welcomed by the Council of Europe’s Group of States against Corruption as ‘a significant step in improving transparency of the legislative process on the side of the Federal Government’ . It is further planned to unify this in a single platform, as currently, each federal ministry is publishing such contributions on their respective websites .

Respect for fundamental and constitutional rights is ensured in several ways. Constitutional review takes place at both the federal level as well as at the level of the Länder. At the federal level, the Basic Law provides for a number of different procedures that allow for the constitutional review by the Federal Constitutional Court . These include the abstract judicial review of statutes, the specific judicial review of statutes, the disputes between the federal level and the Länder, the disputes between constitutional organs and individual constitutional complaints, which may, in exceptional cases, also include the constitutional review of statutes. The Federal Constitutional Court may also issue preliminary injunctions. Review of constitutionality also exists at the level of the Länder. For state laws, it is exercised by the respective Constitutional Courts of the Länder. The general regime in place for constitutional review is generally considered as effective. However, the recent judgment of the Federal Constitutional Court of 5 May 2020 has raised concerns regarding the scope of its constitutional review in relation to the legal order of the European Union . Stakeholders also pointed to specific aspects regarding the mechanisms in place for monitoring the satisfactory implementation of judgments of the Federal Constitutional Court. There are some concerns that no effective mechanism exists to ensure that judgments are implemented within a set period of time, as witnessed in the lack of legislative follow-up in the implementation of a landmark judgment on inheritance tax law from 2014 or at the level of some Länder where the executive has not implemented administrative court rulings in the area of EU law concerning air quality . Another aspect raised is the lack of any fast-track constitutional review of new laws, where their constitutionality is in doubt and where there are reasons to believe that the legislator is not fully implementing previous judgments of the Federal Constitutional Court. The only available remedy in this particular case is to launch a new complaint, which may lead to significant burdens for the complaining party . In the context of the COVID-19 pandemic, the Federal Constitutional Court has been seized with regards to certain of the measures adopted to combat the pandemic , and ordered preliminary injunctions against some measures. Moreover, administrative courts across Germany were seized in proceedings for preliminary relief or injunctions as regards certain public measures related to the COVID-19 pandemic, in some cases with success, while main proceedings are ongoing .