Criminal breach of trust (Untreue) under section 266 StGB
Untreue, criminal breach of trust, is the sharpest and at the same time the vaguest allegation against company management. It requires no enrichment and no secret account: it is enough that a decision is judged, with hindsight, to have breached a duty and caused a loss. That puts almost any business decision theoretically under reservation. The Federal Constitutional Court has therefore tied the offence to narrow limits, and that is exactly where the defence begins.
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Quantify the loss,
do not assume it.
Two routes into the same allegation.
Section 266 of the German Criminal Code (Strafgesetzbuch, StGB) knows two variants. The abuse variant covers a person who misuses a granted power to dispose of another's assets or to bind another, acting with legal effect towards the outside world but overstepping the limits of what they were permitted to do. The breach-of-duty variant covers a person who breaches a duty to safeguard another's financial interests. Both require that a loss is thereby caused to the assets in their care.
The duty to safeguard assets
Not every contractual relationship gives rise to a duty to safeguard assets (Vermögensbetreuungspflicht). The duty must be a genuine, central obligation to look after another's financial interests, not a mere incidental duty. Whether such a duty existed at all, and how far it reached, is often the first battleground, because without it the offence does not arise.
Breach of duty and business judgment
A business decision is not a breach of duty simply because it turned out badly. Management is entitled to a margin of entrepreneurial judgment, and a decision taken responsibly, on an adequate basis of information and in the interest of the company, does not become criminal with hindsight. Separating a genuine breach from a decision that merely failed is central to the defence.
The loss and its limits
The Federal Constitutional Court has insisted that the loss (Nachteil) must be concretely quantified and may not be equated with the breach of duty itself. A vague or assumed disadvantage is not enough; the loss must be shown as a real, calculable diminution of the assets. This requirement is often where an Untreue allegation is tested and, frequently, where it fails.
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Breach of trust, briefly explained.
Does breach of trust require personal enrichment?
No. Untreue under section 266 StGB requires no enrichment and no secret account. It is enough that a breach of a duty to safeguard assets causes a loss. That is what makes it such a broad allegation, and why its limits matter.
What is the duty to safeguard assets?
A genuine, central obligation to look after another's financial interests (Vermögensbetreuungspflicht), not a mere incidental duty. Whether such a duty existed at all, and how far it reached, is often the first battleground, because without it the offence does not arise.
Why is quantifying the loss decisive?
The Federal Constitutional Court requires the loss to be concretely quantified and not equated with the breach of duty. A vague or assumed disadvantage is not enough. This requirement is often where an Untreue allegation is tested and where it fails.
This page gives a general overview and does not replace advice on the individual case. Legal position: 2026.
Related pages.
See the wider picture in how a German white-collar case works and our white-collar crime defence.
An Untreue allegation?
We test the duty, the breach and above all the quantified loss, and defend the decision on its merits.
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