Der Tatbestand des Subventionsbetrugs: Grundstrukturen, dogmatische Einordnung, Streitfragen (English shop)

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§ 264 StGB has a twofold protective purpose. The protected legal interest is, on the one hand, public assets. This is shown by a systematic comparison with § 263 StGB. Accordingly, the cultural and social subsidies covered by § 263 StGB likewise involve conduct affecting the legal interest of property. These principles can also be transferred to the offence of subsidy fraud. On the other hand, § 264 StGB protects the state’s freedom of planning and disposition, whose substantive content is grounded in securing the allocative efficiency of a market whose existence or functioning is endangered, and thus in the interest of preserving public goods that are particularly worthy of protection. Only by means of this conception of the protected legal interest can the specific wrongfulness of endangerment under § 264 be established.

§ 264 StGB is to be classified as an abstract endangerment offence. The offence is also fulfilled where the grantor of the subsidy is aware of the actual facts or has seen through the deception as such. Since, owing to the protected legal interest of freedom of planning and disposition, damage that is measurable in scientific terms can never be established, the framing of § 264 StGB as an abstract endangerment offence is appropriate and compatible with the principle of culpability. Against the background of Community law requirements and the particularities of economic criminal law, there are also no objections to § 264 StGB from the perspective of the principle of subsidiarity.

Only direct subsidies are covered by § 264 (7) StGB. In light of the more recent case law of the Bundesverfassungsgericht, the substantive concept of subsidy satisfies the requirements of the principle of legal certainty under Art. 103 (2) GG. The remaining degree of indeterminacy should be addressed by a restrictive interpretation of the offence.

Since the amendment of § 264 (7) StGB, which now also covers EC subsidies to private parties that do not promote economic activity, the penalisation of gross negligence (Leichtfertigkeit) in § 264 (4) StGB can no longer be justified by the notion of professional negligence. Since then, the sanctioning of the grossly negligent misuse of subsidies by private parties by means of criminal penalties has been incompatible with the principle “nulla poena sine culpa” and thus unconstitutional.

The designation of the offence as “subsidy fraud” reflects the content of the provision only inaccurately, but should be retained on account of a Europe-wide harmonisation of terminology.

By construing § 264 (8) no. 1 alt. 1 as a purely declaratory norm and not as an authorising basis for the administration, the objections to the compatibility of § 264 (8) with Art. 103 (2) GG can be met. Nor does the dispensing with the element “relevant to the subsidy” in the case of subsidies under EC law give rise to conclusive doubts as to the compatibility of § 264 StGB with constitutional principles.

The coverage of sham and circumvention transactions by norms outside criminal law does not violate the prohibition of analogy and does not constitute an impermissible erosion of the procedural principle of “nemo tenetur”.