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Compliance and sport – a risky game? Criminal liability risks when inviting business partners to a stadium lounge

In 2024, Germany will host the UEFA European Men’s Football Championship. Companies will use this event as an opportunity to invite their business partners to stadium lounges. However, official investigations, particularly those after the 2006 FIFA World Cup, have shown that there are significant risks. Awareness of these risks has increased since then, as has the willingness of investigating authorities to pursue them. And even if corrupt intent cannot often be proven, the mere fact of an ongoing investigation can damage reputations. Therefore, it remains important to take preventative measures to address this issue and avoid even the appearance of corruption. The following article sets out the conditions under which an invitation to a stadium lounge may be permissible.


Outline of the problem: Bribery or granting of benefits

The starting point is the offence of accepting or giving a bribe in commercial practice (Section 299 of the German Criminal Code) and the offence of giving a benefit to a public official (Section 333 of the German Criminal Code). Both offences always require the granting of a benefit to an employee or agent of a company, a public official or a third party.

A benefit is any advantage that has an economic, personal, or intangible value without the recipient being entitled to it. There are no limits on the value of a benefit set by law or by Supreme Court rulings. Therefore, even the provision of benefits of low value may also constitute a benefit and fulfil the elements of the offence. However, the value of the benefit must be sufficient to influence. Tickets for a European Championship football match, for which a fee is paid, have a pecuniary value and therefore qualify as a benefit.


Consideration for the benefit

The benefit must be offered in return for the commission of the offence (so-called unlawful agreement). The consideration in commercial practice must be preferential treatment in competition or an internal breach of duty. Preferential treatment in competition includes, for example, any advantage over potential competitors, such as better terms for contracts or the general award of contracts to the benefactor. A close temporal connection with a specific business decision is a strong indication that it is in return for a benefit.

In the case of benefits to public officials, the mere performance of official duties by the public official is sufficient to fulfil the offence. According to the jurisprudence, an official act is sufficient, which does not even have to be broadly defined in accordance with the ideas of the person granting the benefit; this is in contrast to the offences of taking and giving bribes (Sections 332, 334 of the German Criminal Code), which require a more specific official act. The mere cultivation of an atmosphere and contacts on the part of the public official can therefore also constitute an offence. The case of the then EnBW board member Utz Claaßen, who invited the Minister of the´State Baden-Württemberg to attend matches during the 2006 FIFA World Cup (BGH, October 14, 2008 – 1 StR 260/08), showed that this is the case when an invitation to a major football event is accepted. Therefore, particularly strict standards should apply when inviting public officials.



Key considerations to be considered for invitations

  • Recipient

As shown above, invitations to public officials are subject to stricter standards than invitations to representatives of private companies. Public officials may be invited for representative purposes within narrow limits, provided that their position is unrelated to the business activities of the inviting party.


  • Benefits (for third parties)

An invitation to a lounge is a benefit which, when calculated for the individual guest, is of significant pecuniary value. Benefits to third parties also fall within the scope of the offences, even if the benefit is intended for the guest’s employer or company. In this case, however, the risk of possible personal influence is lower.


  • Unlawful agreement

For the offence to be committed, there must be a quid pro quo for the benefit. As this unlawful agreement can rarely be clearly proven, external criteria are used to infer that at least some consideration is expected. These external criteria include secrecy or lack of transparency, direct involvement of the invitee in business decisions, a close temporal connection to these decisions, and the nature, value and number of benefits provided.


Guide “Hospitality and Criminal Law”

In the wake of the Utz Claaßen case, the organisations S 20 – The Sponsor’s Voice and the Vereinigung der Sportsponsoring Anbieter e.V. (Association of Sports Sponsorship Providers) created a guide entitled “Hospitality and Criminal Law” in 2013, which aims to raise awareness of the limits of criminal law and to take advantage of the opportunities offered by sponsorship within a legally permissible and morally acceptable framework.

Specifically, the guide lists the following negative indicators for invitations to a stadium lounge:

  • The employee is significantly involved in a current procurement decision.
  • Accompanying persons are invited.
  • Valuable gifts are distributed.
  • Travel and/or accommodation expenses are covered.
  • The invitation lasts several days and is combined with other forms of high quality entertainment.

However, there are some weaknesses in the guidelines. For example, there is a general reference to the fact that public officials may be invited for representative purposes. This is not entirely correct. In the Utz-Claassen case, the Federal Court of Justice stated that criminal liability is not automatically excluded even where the “exercise of representative functions” is part of the “official duties” of the invitee, if the invitation “not only has this official benefit” but also serves to “satisfy personal interests”. This could be the case for a European Championship match.



Guidelines for decision-making

Therefore, in addition to the guidelines, it is useful to review the following steps and implement the measures described to ensure that invitations can be issued without risk:


Step 1: Recipient of the invitation

  • Invitations to individuals should be avoided; instead, the invitation should be addressed to the company itself in order to avoid personal influence. Under no circumstances should the invitation be addressed to direct operational contacts (e.g., Head of Purchasing, Head of Sales).
  • If invitations are sent to individuals, they should be high-ranking individuals, i.e., usually executive bodies (board members/managing directors) of large companies, and not direct operational contacts (e.g., Head of Purchasing, Head of Sales).
  • Public officials should only be invited in exceptional cases and only for representative purposes. At most, politicians at the level of state/federal ministers, state secretaries or senior municipal officials are suitable for representative purposes, but not operational decision-makers. Furthermore, representative purposes in a closed stadium lounge are rather remote; at most, UEFA invites political officials for representative purposes.


Step 2: Selecting the organisation to invite

  • To avoid the risk of criminal liability, there should be no temporal link to specific business decisions taken within the company.
  • In the case of public officials, they should not be involved, actually or potentially, in any decisions or actions of their employing organisation that affect the company.
  • The selection of the person invited should be based on objective criteria unrelated to the company’s business. Invitations should not be extended to companies that have important business decisions to make in the immediate context of the invitation or the football matches.

Ideally, fixed criteria should be established for selecting a pool of business partners to be invited. For example, turnover thresholds can be set. Within a pool selected in this way, objective criteria should be used as far as possible for the actual selection, e.g., by inviting business partners from countries whose national teams are currently playing.


Step 3: Event content

  • In addition, no inappropriate or excessive benefits should be provided during the event. The only benefits which should be offered are the invitation to the football match and appropriate hospitality during the event. Invitations to accompanying persons should be avoided, as well as the assumption of travel and/or accommodation expenses. Gifts of significant value should not be given to guests.


 Step 4: Transparency

  • The invitation should be as transparent as possible. In the case of a personal invitation, prior consent should always be obtained from the company’s management or the employer’s officials.
  • The invitation should always be sent to the company or official address and never to the private address of the person being invited.
  • In the case of invitations from public officials, obtaining the consent of their employing authority will result in impunity. Since this must be obtained before the invitation is sent, it is advisable to make the invitation subject to the condition precedent that such consent will be granted. Although this procedure does not justify invitations to officials of private companies, it does increase transparency. Therefore, it is also recommended to obtain the consent of the company’s management.


We have summarized the main guidelines in the attached overview. This overview is not a substitute for legal advice in specific cases. Please contact us if you would like us to review and assess your specific invitation practice.


Decision-making Guidelines.pdf