The former CSU member of the Bundestag Georg Nüßlein and the Bavarian member of the state parliament Alfred Sauter (CSU) have not made themselves punishable in the mask affair. The Federal Court of Justice (BGH) in Karlsruhe declared on Tuesday that the brokering of transactions with protective masks for a commission is not a criminal form of bribery. They can keep the money, the arrest warrant against a co-accused businessman and the seizure of assets totaling 3.6 million euros remain lifted. (Az. StB 7-9/22)

Nüßlein and Sauter were involved in the mask business in the initial phase of the corona pandemic. In this context, the Attorney General’s Office began investigations against the two CSU politicians. In February last year there was a raid on Nüßlein, who was still a member of the Bundestag at the time, and 660,000 euros were also taken from him. There was a raid on Sauter on March 11, 2021, and a day later 1.24 million euros were arrested.

However, the Higher Regional Court of Munich ruled in November that neither the offense of bribery nor the offense of taking a bribe by elected officials – in the case of the entrepreneur – was fulfilled.

The Attorney General’s Office, on the other hand, went before the BGH, which now rejected their complaints. He made it clear that he could not decide otherwise given the current legal situation. The federal prosecutor’s office had also submitted an application not to classify the behavior as corruption or bribery.

Nüßlein and Sauter did not exercise their mandate in the sense of the criminal law when they brokered the sale of masks in exchange for a profit, the third criminal senate at the BGH explained. This performance of the mandate includes the work in Parliament, i.e. in the plenary session or in parliamentary bodies. The mere agreement that the members of parliament refer to their status “in the case of extra-parliamentary activities” in order to influence official decisions in the interests of a private entrepreneur does not fulfill this characteristic.

It is also not enough if a member of parliament uses the relationships with decision-makers that are tied up in his or her function or should use his or her official equipment. The legislature deliberately did not cover purely extra-parliamentary acts and did not transfer the corruption offense of abusive influence – which is provided for in two international agreements concluded by Germany – into German law, the BGH explained.

It is up to the legislature to decide whether it wants to use criminal law to defend a particular legal interest. Courts could not correct this decision. Another interpretation is out of the question, even if the actions could appear similarly punishable. If the legislature recognizes a criminal liability gap, it must decide whether this should be closed.

Nüßlein resigned from the CSU in the course of the scandal and is no longer in the Bundestag. The CSU member of the state parliament and former Bavarian Minister of Justice Alfred Sauter had to leave the state parliamentary group, but retained his seat in the state parliament and also remained in the party. In the investigative committee of the Bavarian state parliament on the mask affair, neither made a statement.