Arranging an advantage in public procurement, public competition and public auction

Legal definiton 

Section 256 of the Criminal Code:

(1) Whoever, in connection with the awarding of a public contract, a public competition, or a public auction, with the intent to cause harm to another or to obtain an advantage for themselves or another, grants any supplier, competitor, or auction participant preferential treatment or more favorable conditions at the expense of other suppliers or competitors, shall be punished by imprisonment for six months to three years or by disqualification.

(2) The perpetrator shall be punished by imprisonment for two to eight years if: 

a) they commit the act mentioned in paragraph 1 as a member of an evaluation committee, an issuer or organizer of a public competition or public auction, an auctioneer, or as a member of an organized group, 

b) they cause significant damage through such an act, or 

c) they obtain significant benefit for themselves or another through such an act.

(2) The perpetrator shall be punished by imprisonment for two to eight years if:

a) the act mentioned in paragraph 1 is committed with at least two other persons,

b) an official seal is broken to facilitate such an act, or

c) the act is committed on a significant scale.

(3) The same sentence shall be imposed on whoever, under the circumstances mentioned in paragraph 1, requests, receives, or promises any financial or other benefit.

(4) Whoever, under the circumstances mentioned in paragraph 1, requests, receives, or promises any financial or other benefit and commits such an act as a public official, shall be punished by imprisonment for three to ten years

Subjective aspect - intent

Arranging an advantage in public procurement, public competition and public auction is an intentional criminal offence. A criminal offence is committed intentionally if the perpetrator wanted to violate or endanger a legally protected interest in the manner specified by the Criminal Code (direct intent), or if the perpetrator knew that his actions could result in such a violation or endangerment and accepted the possibility of it occurring (indirect intent).

If the act can be deemed as mere negligence rather than intent, it does not constitute the described criminal offence.

Defense

There are various defense strategies available. Given the elements of this criminal offence, the following questions may be relevant:

• Was it a public procurement, public competition, or auction?
  
• Was the intent of the person in question to cause harm to another or to obtain an advantage for themselves or another?
• To whom was preferential treatment or more favorable conditions intended to be granted?
  
• At whose expense?
  
• Was there a legitimate reason for the preferential treatment or more favorable conditions?
  
• Can the conduct of the person in question be considered a preliminary market consultation?
  
• What was the nature of the relevant performance?
  
• How did the communication proceed?
  
• How do similar proceedings and communications typically occur in comparable cases?
• Was the perpetrator's intent directed towards the decisive facts?