Termination of criminal proceedings regarding the evasion of social security payments amounting to approx. 80,000 euros

In a decision issued in November 2023, the Hamburg public prosecutor's office terminated criminal proceedings on charges of withholding and embezzlement of wages (Section 266a of the German Criminal Code) in return for a payment order of 16,000 euros. The fact that the perpetrator had compensated for the alleged loss of contributions by making a corresponding payment to the health insurance funds (social security collection agencies) was a key factor in the public prosecutor's decision. The "apocryphal reason for termination" of the difficult evidence was - at least from the point of view of the public prosecutor's office - not given.

The amount of the fine of EUR 16,000 was within the usual range for the Hamburg public prosecutor's office at around 20 percent of the alleged damage to social security contributions. What is remarkable is the considerable deviation from the guidelines circulating in Hamburg for sentencing in white-collar crime cases, according to which a discontinuation against condition (Section 153a StPO) should only be considered for reduced social security contributions of up to around EUR 1,000. However, such low thresholds for termination no longer correspond to common practice, particularly in Hamburg and Berlin.

Even the customs authorities, which are known for their very rigid sanctions regime, discontinue proceedings with higher social security contribution damages if they independently conduct criminal proceedings for violations of Section 266a StGB in accordance with Section 14a of the Act to Combat Undeclared Work and Illegal Employment (SchwarzArbG). For example (also in 2023), criminal proceedings by the main customs office in Berlin were terminated for a contribution loss of around EUR 7,400 - after the social security contributions were paid in arrears - in return for payment of a condition amounting to around 25 percent of the contribution loss.

It is worth noting here that the threshold for termination under Section 153a StPO is significantly lower in the case of evasion of import duties, although the main customs offices are also responsible as prosecuting authorities in this case. For example, the criminal and administrative fines office of the HZA Augsburg (responsible for Munich Airport) generally only considers termination in the case of tax losses of up to EUR 2,000. In terms of sentencing, however, a tax loss is not per se more serious than a social security contribution damage; the different sanction practice is rather due to the customs service regulations (which are still missing for proceedings under Section 14a SchwarzArbG).