Anti-Corruption 2024 Comparisons

Austria has signed and ratified the following conventions.

• The Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (ratified by Federal Law Gazette III 176/1999). Active bribery of foreign public officials as stated in Article 1 (1) of the OECD Anti-Bribery Convention has been transposed into law (at least in part) by way of Section 307 of the Austrian Criminal Code (Strafgesetzbuch, StGB) in the version as published in Federal Law Gazette I 153/1998; see also the definition of a “public official” in Section 74 (1) clause 4a of the Austrian Criminal Code.
• The United Nations Convention against Corruption (UNCAC) dated 31 October 2003 (ratified by Federal Law Gazette III 2006/47, transposed into law by way of Federal Law Gazette I 109/2007).
• The Council of Europe’s Civil Law Convention on Corruption 1999 (ratified on 30 August 2006).
• The Council of Europe’s Criminal Law Convention on Corruption dated 27 January 1999 (ratified on 25 September 2013).
• The Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union dated 26 May 1997 (ratified by Federal Law Gazette III 2000/38, transposed into law in particular by way of Section 74 (1) clause 4a (Section 304/307 (1) clause 1) of the Austrian Criminal Code).
• The Convention on the protection of the European Communities’ financial interests dated 26 July 1995; Protocol to the Convention on the protection of the European Communities’ financial interests; Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the protection of the European Communities’ financial interests (ratified by Federal Law Gazette III 267/2002).

Since 1 December 2006, Austria has been a member of the Council of Europe’s Group of States against Corruption (GRECO).

The main provisions of criminal law relating to corruption are contained in Segment 22 of the Austrian Criminal Code (criminal offences relating to public officials, corruption and other related criminal offences). Individual offences contained in Section 6 of the Austrian Criminal Code (criminal offences against third-party assets) also represent an attempt to counter corruption, particularly in the private sector.

In addition, the constituent elements of criminal offences as contained in the Austrian Financial Crime Act (Finanzstrafgesetz), in the Austrian Foreign Trade and Payments Act (Außenwirtschaftsgesetz) and in the Austrian Federal Act against Unfair Competition (Bundesgesetz gegen den unlauteren Wettbewerb) also serve to combat corruption. The Austrian Corporate Liability Act (Verbandsverantwortlichkeitsgesetz) governs the responsibility of legal entities and registered partnerships. Any disciplinary consequences for public officials are set out in other legal provisions.

In theory, there are no guidelines on interpretation. However, in practice, the courts adhere to the case law of the supreme courts.

Bitcoin and other virtual currencies have established themselves as a means of exchange on the market. Among other things, this raises questions from a regulatory perspective. Quite recently, the EU Directive 2019/713 (on combating fraud and counterfeiting of non-cash means of payment) and replacing Council Framework Decision 2001/413/JHA (Directive 2019/713) required an amendment to the Austrian Criminal Code.

The required amendments to the Austrian Criminal Code entered into force on 11 December 2021 (Federal Law Gazette I 2021/201), in particular amending the definition of the term “non-cash means of payment” within the meaning of Section 74 (1) clause 10 of the Austrian Criminal Code.

Before the amendment only physical non-cash means of payment were covered by the definition. The EU Directive has the explicit aim of covering incorporeal means of payment and “computer-related fraud”. The altered definition is in line with Article 2 lit a of the Directive, which states, “non-cash payment instrument: non-corporeal or corporal devices, objects or records or a combination thereof, other than legal tender, and which alone or in conjunction with a procedure or a set of procedures, enables the holder or user to transfer money or monetary value, including through digital means of exchange”.

The amendment eliminated the requirement that the issuer must be identifiable. Furthermore, the requirement for the cash-representative-function or the function of issuing cash, no longer applies.

Virtual currencies are not means of payment per se but are considered as such only if they are accepted by third parties. This does not result from the intended use of virtual currencies by users, but from the legal definition in the Financial-Market-Money-Laundering Act (Finanzmarkt Geldwäschegesetz).

The most recent federal law amending the Austrian Criminal Code and the Austrian Payment Services Act 2018 to implement the Directive (EU) 2019/713 (on combating fraud and counterfeiting involving non-cash means of payment) mainly includes the following measures:

• expansion of the definition of non-cash means of payment in Section 74 (1) clause 10 of the Austrian Criminal Code to include non-cash means of payment, including virtual currencies (see above);
• expanding the offences in:
1. Section 148a Austrian Criminal Code (fraudulent misuse of data processing);
2. Section 241b Austrian Criminal Code (accepting, transferring or possessing false or falsified non-cash means of payment);
3. Section 241c Austrian Criminal Code (preparing to counterfeit non-cash means of payment); and
4. Section 241f Austrian Criminal Code (accepting, transferring or possessing alienated non-cash means of payment);
• increasing the penalties in Section 126c of the Austrian Criminal Code (misuse of computer programs or access data), Section 148a of the Austrian Criminal Code, Section 241c of the Austrian Criminal Code, Section 241h of the Austrian Criminal Code (spying on data of non-cash means of payment); and
• implementation of commission of the crime within the framework of a criminal organisation in Section 147 Austrian Criminal Code (aggravated fraud), Section 148a Austrian Criminal Code, Section 241b Austrian Criminal Code and Subsection 241f Austrian Criminal Code.

The investigative measures in the Austrian Code of Criminal Procedure were recently supplemented by the paragraph regarding “Seizure in authorities and public offices” (Section 112a). This amendment, which was the subject of lively debate in the run-up, entered into force in December 2021, and essentially concerns the rights of authorities and public officers in the event of a seizure of data in the course of a house search. In this case, sensitive intelligence records or data carriers are to be secured and deposited in a suitable manner against unauthorised inspection or modification upon the objection of the person concerned, whereby the decision as to whether the seized or confiscated records and/or data carriers may be used is made by a court.

Moreover, due to the implementation of the EU Directive (EU) 2017/1371 on combating fraud affecting the financial interests of the Union by means of criminal law (PIF Directive), the Federal Law Gazette I 111/2019 adopted corresponding amendments to the Austrian Criminal Code, the Austrian Act on the Federal Agency for Preventing and Combating Corruption and the Austrian Code of Criminal Procedure. In the Austrian Criminal Code, these amendments were anchored in the offences “Expenditure fraud to the detriment of the financial interests of the European Union” (Section 168f) and “Misappropriation of funds and assets to the detriment of the financial interests of the European Union” (Section 168g) after adaptation by the Federal Law Gazette I 94/2021. In addition, the implementation of the Directive was accompanied by an amendment or redefinition of the terms “public official” and “Union official”, which also resulted in an addition to the offences of bribery (Section 304), acceptance of advantage (Section 305), bribery (Section 307) and granting of advantage (Section 307a).

The legislature also planned comprehensive changes through the Austrian Criminal Procedural Law Amendment Act 2018. This Act, which for the most part came into force on 1 June 2018, enables law enforcement agencies to use state espionage software (Bundestrojaner) to monitor encrypted messages and messenger services such as WhatsApp and Skype.

However, in December 2019, the Austrian Constitutional Court annulled large parts of the Austrian Criminal Procedural Law Amendment Act 2018, including the Bundestrojaner, as unconstitutional. Therefore, for the time being, those provisions will not come into force. The legislature might pass a new Amendment Act, but this is not likely to happen in the near future. The Austrian Criminal Law Amendment Act 2018, which came into force on 1 November 2018, extended the catalogue of terrorist offences as well as the domestic jurisdiction related to terrorism.

With the amendment of the Transparency Data Bank Act 2012, which came into force on 7 November 2019 and 1 January 2020, the control of the appropriate use of public funding or support is being improved.

In September 2023, major amendments of the Austrian Criminal Code, the Austrian Corporate Liability Act, the Regulations on National Council Elections and the Regulations on European Council Elections came into effect implementing stricter anti-corruption laws (Korruptionsstrafrechtsänderungsgesetz 2023). The recent amendments include both higher penalty ranges and new offences. For example, for all corruption offences in the public sector (Sections 304 to 307b Austrian Criminal Code), the maximum penalty is raised from 10 to 15 years if the value of the advantage exceeds EUR300,000. The maximum possible fine for associations under the Corporate Liability Act will be tripled. The maximum fine for associations will therefore be EUR5.4 million. Furthermore, a new offence, “purchase of mandate” (Section 265a) was added to the Austrian Criminal Code. Moreover, the offences of Section 304 and Section 306 Austrian Criminal Code used to be applicable to public officials only (Amtsträger); from now on, these offences also include future public officials (candidates for a public office, Section 74 (1) clause 4d Austrian Criminal Code).

Classification and Constituent Elements

A “unitary perpetrator” system applies in Austria. Thus, the direct perpetrator is punished under the same offence (and severity of sentence) as a person who incites the direct perpetrator or contributes to the offence. Accordingly, for instance, it is not only a civil servant who can commit an abuse of official authority (as could be presumed according to the wording of the law, as further described below), but also any person who incites a civil servant to commit an abuse of authority; by the mere attempt at such incitement, that person is punishable, as well as any person who makes any other contribution to an abuse of official authority on the part of a civil servant.

In principle, a perpetrator is deemed to be acting with intent once they seriously consider the realisation of elements constituting a criminal offence to be possible and accept the situation. Partly, however, there is a requirement that the perpetrator does not consider a particular circumstance or outcome to be merely possible, but deems the existence or occurrence thereof to be certain.

Furthermore, as a general rule, it is not only a completed offence, but a mere attempt at an offence, that is punishable.

The Austrian Criminal Code makes a distinction between civil servants (Beamte), public officials (Amtsträger) and arbitrators (Schiedsrichter). Since September 2023, future public officials are also included. Civil servants are persons who are entrusted in any manner whatsoever with administrative duties. The concept of a “public official” goes further. It covers all persons who undertake legislative, administrative or judicial duties for any public body or another state or for an international organisation, whether as executive officer or employee, as well as those who are authorised to execute official acts on behalf of a public body. In addition, public officials are also deemed to be persons who act as executive officers or employees of a government-related organisation. The decision-makers of an arbitration court (arbitrators) can also come under consideration as perpetrators of corruption offences.

Bribery

With regard to “corruptibility” (Section 304 of the Austrian Criminal Code), a public official or arbitrator renders themselves liable to prosecution if they demand, accept or accept the promise of an advantage for themselves or for a third party, in return for the exercise of, or the refraining from the exercise of, an official act in violation of their duties. The official act to be performed must in any event constitute a violation of duty. If the public official or arbitrator fulfils all their duties in the correct manner, this constituent element of an offence cannot be fulfilled (however, there may be another offence – see further below).

Experts appointed in proceedings also render themselves liable to prosecution under this provision if they accept an advantage in return for preparing a false expert’s report. In respect of these constituent elements, there exists no marginality threshold.

A person who offers, promises or grants a public official, arbitrator or expert an advantage for themselves, or a third party, for the exercise of, or the refraining from the exercise of, an official act in violation of duties shall be committing bribery (Section 307 of the Austrian Criminal Code).

In respect of these two offences, no marginality threshold exists.

Acceptance of an Advantage (Section 305 of the Austrian Criminal Code) and Offering an Advantage (Section 307a of the Austrian Criminal Code)

A public official or arbitrator who demands, accepts or accepts the promise of an advantage for themselves or a third party for the due exercise of, or refraining from the due exercise of, an official act shall be committing the offence of acceptance of an advantage (Section 305 of the Austrian Criminal Code). The difference between this and corruptibility (Section 304 of the Austrian Criminal Code) lies in the fact that the official act is in principle in compliance with the law and not in violation of duties. If the public official or arbitrator is not proactive – ie, they do not demand an advantage, but merely accept an advantage or accept the promise of an advantage – then acceptance or acceptance of a corresponding promise is only punishable if the advantage in question is undue.

Advantages not deemed undue are, for instance, those for which acceptance is lawful, as well as minor-value tokens of appreciation which are usual in the locality or region – this means, generally, tokens of appreciation which have a maximum value of EUR100, provided that the public official or arbitrator does not regularly accept promises of such tokens or does not regularly accept those tokens.

A person who offers, promises or grants a public official or arbitrator an undue advantage for themselves or for a third party in return for the due exercise of, or refraining from the due exercise of, an official act, renders themself liable to prosecution for the offence of offering an advantage (Section 307a of the Austrian Criminal Code).

Acceptance of an Advantage for the Purpose of Exerting Influence (Section 306 of the Austrian Criminal Code) and Offering an Advantage for the Purpose of Exerting Influence (Section 307b of the Austrian Criminal Code)

If a public official or arbitrator demands, accepts or accepts the promise of an advantage not related to a specific official act, but rather with the intention of allowing themself to be influenced thereby in their activity as a public official, they are committing the offence of accepting an advantage for the purpose of exerting influence. With this provision, too, cases are excluded in which the public official or arbitrator merely accepts or accepts the promise of a minor advantage; where a demand is made, here again, there exists no marginality threshold.

A person who offers, promises or grants to a public official or arbitrator an undue advantage for themself or a third party with the intention of thereby influencing the public official or arbitrator in their activity as a public official, shall render themself liable to prosecution for the offence of offering an advantage for the purpose of exerting influence (Section 307b of the Austrian Criminal Code).

Illicit Intervention (Section 308 of the Austrian Criminal Code)

Section 308 of the Austrian Criminal Code prohibits the demand, acceptance, promise or acceptance of a corresponding promise, offer and grant of an advantage for the purpose that the person who receives the advantage exerts undue influence on the decision-making of a public official or arbitrator. Such undue influence is given if it is aimed at the exercise or the refraining from the exercise of an official act in violation of duties or is associated with the offer, promise or grant of an undue advantage. Thus, this particular offence is based on a three-person relationship: the perpetrator offers an advantage to someone who then exerts undue influence on the public official.

Acceptance of Gifts and Bribery of Employees or Agents (Section 309 of the Austrian Criminal Code)

An employee or agent of a business undertaking who, in the context of business dealings, demands, accepts or accepts the promise of an advantage for themself or a third party, from another person in return for the exercise of, or the refraining from the exercise of, a legal act in violation of their duties, shall be committing the offence of acceptance of gifts and bribery of employees or agents (Section 309 of the Austrian Criminal Code). Under the terms of the same offence, any person who offers, promises or grants an advantage to an employee or agent of a business undertaking in the context of business dealings in return for the exercise of, or refraining from the exercise of, a legal act shall also render themself liable to prosecution.

Section 309 of the Austrian Criminal Code is intended to prevent corruption in the private sector and thus relates to such conduct in the private economic sector, whereby employees or agents of another business undertaking seek to obtain preferential treatment, constituting a violation of duty through promises or the granting of gifts or other advantages. A similar criminal provision may be found in Section 10 of the Austrian Federal Act against Unfair Competition.

Acceptance of Gifts by Persons Holding a Position of Power (Section 153a of the Austrian Criminal Code)

A person who has accepted a pecuniary advantage that is not merely insignificant in return for the exercise of the power granted to them to effect disposal in respect of third-party assets or of the power to place another person under a duty (such as a managing director of a company) and who does not, in violation of their duty, remit that pecuniary advantage shall be committing the offence of acceptance of gifts by a person holding a position of power (Section 153a of the Austrian Criminal Code).

Falsification of Balance Sheets (Sections 163a et seq of the Austrian Criminal Code)

If, in the case of a legal entity or partnership, the executive bodies or executive officers shall present the balance sheets in an unreasonable manner in false or incomplete form, and if this has the capacity to cause a substantial loss, the executive bodies or executive officers – and possibly also the auditors – shall be committing the offence of falsification of balance sheets (Sections 163a et seq of the Austrian Criminal Code).

This offence thus faces a number of barriers before punishable conduct may actually be deemed to have occurred. Firstly, the presentation must be unreasonable and, secondly, it must have the capacity to cause a substantial loss. The perpetrator’s intent must also encompass these aspects.

Abuse of Official Authority (Section 302 of the Austrian Criminal Code)

A civil servant who knowingly abuses their power to execute official acts on behalf of a public body as the executive officer thereof, and who thereby intends to cause prejudice to the rights of a third party, is committing an abuse of official authority. Such an offender may also consist of the state itself. There is a requirement that the perpetrator must consider the existence of an abuse of power to be certain.

Misuse of Funding (Section 153b of the Austrian Criminal Code)

Any person who uses funding granted improperly for purposes other than those for which it was granted shall render themselves liable to prosecution for misuse of funding (Section 153b of the Austrian Criminal Code).

Agreements Restricting Competition in Procurement Procedures (Section 168b of the Austrian Criminal Code)

If unlawful agreements are made, in the context of a procurement procedure, that are aimed at inducing the principal to accept a particular offer, this constitutes commission of the offence of an agreement restricting competition in a procurement procedure (Section 168b of the Austrian Criminal Code).

See 2.1 Bribery.

The limitation period for the prosecution of corruption offences is based primarily on the amount of any loss or illegitimate advantage, whereby, as a rule, the limitation period is five or ten years. Here, it must be borne in mind that particular periods, specifically the majority of a preliminary criminal investigation, are not counted as part of the limitation period.

Austrian criminal laws apply in any event to all offences committed within Austria. Furthermore, Austrian criminal laws apply to criminal offences committed abroad by an Austrian civil servant, public official or Austrian arbitrator, as well as in the case of corruption offences if the perpetrator was an Austrian national at the time of the offence or the offence was committed in favour of an Austrian public official or arbitrator.

Falsification of balance sheets (Sections 163a–d of the Austrian Criminal Code) is also subject to penalty under Austrian criminal laws if the principal place of business or registered office of the organisation is situated in Austria. Furthermore, Austrian criminal law comprises other special provisions that could in principle establish punishability under Austrian criminal laws.

The Austrian Corporate Liability Act (Verbandsverantwortlichkeitsgesetz, VbVG) sets out the preconditions under which legal entities, registered partnerships and European Economic Interest Groupings (associations) are liable for criminal offences. All offences may be potentially considered criminal offences. An association may – in addition to the natural person – be held liable for a criminal offence if the act has been committed in favour of the association or duties have been breached through the act of crime in question. Where certain preconditions are given, criminal offences on the part of a decision-maker or an employee of the association may enter into consideration.

The liability of an association for an offence and the punishability of decision-makers or employees in respect of the same act do not preclude one another. By way of legal consequence, the Austrian Corporate Liability Act imposes primarily a fine. Under some circumstances, successors in title may also bear the legal consequences set out in the Austrian Corporate Liability Act. A universal successor in title is in any event affected by the legal consequences; a singular successor in title is affected if, essentially, the same ownership circumstances exist in respect of the entity and the business operation or activity is essentially being continued.

Particularly in the case of crimes against property, a defence may be based purely on the assertion that the objective constituent elements of the offence are not even fulfilled. For example, in the case of an allegation of breach of trust (Section 153 of the Austrian Criminal Code), if it is possible to demonstrate straightforwardly that the company suffered no prejudice (for instance, because a payment has a corresponding value for the company) then neither does punishability enter into consideration. Furthermore, within the framework of defence, it is often possible to demonstrate that the perpetrator had no intention to satisfy the constituent elements of an offence (ie, the perpetrator lacked the intent that is a mandatory precondition of punishability).

General grounds under criminal law aimed at justifying and excusing an action (self-defence, mistake of fact meaning an absence of mens rea, etc) play a very secondary role in criminal law relating to corruption. Naturally, the prosecuting authority is under a duty to provide evidence and the presumption of innocence applies to the accused. If there exists any doubt as to their guilt, they must be acquitted (in dubio pro reo).

In the event that the accused has already confessed or wishes to confess, an attempt must be made to compensate for damages to the greatest possible extent, since this not only constitutes a mitigating factor but may enable the possibility of a settlement according to the Austrian Criminal Code (diversion or withdrawal from criminal proceedings). In such a case, where the preconditions are given, it may be possible to work accordingly towards diversion.

There are no exceptions to the foregoing defences.

As previously set out, some offences are not punishable if no undue advantage is granted or promised. “No undue advantage” means, for instance, an advantage, the acceptance of which is permitted by statute, or tokens of appreciation of minor value such as are usual for a locality or region, which means, in principle, tokens of appreciation that have a value totalling a maximum of EUR100, provided that the public official or arbitrator does not regularly accept such tokens or the promise of such tokens. As soon as a public official or arbitrator demands an advantage, there can be no de minimis exception.

No sectors or industries exist that are entirely exempt from corruption offences. It is merely necessary to bear in mind that, depending on the person to whom an advantage is granted (in particular, whether to a public official or an employee in the private sector), differing offences may apply.

Austrian criminal law sets out a number of possibilities that enable prosecution to be avoided, despite a criminal offence having been committed.

Active Repentance

With regard to numerous crimes against property (eg, breach of trust, money laundering), the punishability of the perpetrator is precluded if, before the criminal prosecution authorities have learned of their culpability, they voluntarily make good the entire loss arising from their action, or contractually undertake to indemnify the injured party accordingly for the loss suffered within a particular period, and indeed do so. Active repentance may also be by way of self-indictment, whereby the perpetrator must at the same time make good the loss suffered by way of a deposit with the authority. In the case of corruption offences in relation to public officials/arbitrators (abuse of official authority, bribery, etc), there exists no possibility of active repentance.

Prosecution Witness

The perpetrator shall not be prosecuted if, before being questioned as an accused or before being compelled to testify, the perpetrator voluntarily approaches the public prosecutor’s office, gives a repentant confession as to their contribution to an act and discloses their knowledge of new facts or evidence, knowledge of which makes a key contribution to uncovering fully a greater criminal offence over and above their own contribution thereto or to determining a leading party to the offence. Where relevant, particular conditions may be imposed upon them (compensating for loss, charitable contribution, payment of a monetary amount, etc – see also under Diversion below).

If the perpetrator is a member of a criminal organisation and if they disclose their knowledge, making a significant contribution to uncovering the criminal offences of that criminal organisation or to determining a leading person involved therein, the perpetrator has the possibility of an exceptional reduced sentence. In such an event, the penalty will be substantially below the minimum level. This option is also possible if the perpetrator discloses their knowledge only after already having been heard as an accused or having been compelled to testify.

“Diversion” or “Withdrawal from criminal proceedings”

Under certain circumstances, the possibility exists that the public prosecutor’s office/the court withdraws from the prosecution (“diversion” – settlement according to Section 198 (and following) of the Austrian Code of Criminal Procedure (Strafprozessordnung)). The perpetrator needs to fulfil certain conditions, in particular, making good losses, payment of a monetary amount or charitable contributions. Above all, in order for diversion to enter into consideration, the facts must be clarified and the perpetrator must assume responsibility therefor (as a rule, a confession is thus required). Furthermore, the degree of the perpetrator’s guilt may not be serious and the offence may not be subject to a custodial sentence of more than five years. Therefore, in the case of more major corruption cases, diversion does not enter into consideration. Further restrictions exist in the case of abuse of official authority.

In terms of penalties, Austrian criminal law primarily has monetary fines and custodial sentences. Under criminal law on corruption, custodial sentences in principle range up to ten years (or more, in exceptional instances). Even in the event of several offences, the maximum penalty may only be applied in full on a single occasion.

Indeed, where several offences are adjudged simultaneously, in criminal trials, the “absorption principle” applies (Section 28 of the Austrian Criminal Code), which states that, despite the commission of several criminal offences, only a single penalty – and not, for instance, a series of individual penalties (“accumulation principle”) – is imposed. This penalty is to be determined in accordance with the law that imposes the highest penalty.

If, for instance, a perpetrator commits an offence subject to a custodial sentence of up to one year and a further offence subject to a custodial sentence of between six months and five years then the penalty shall be fixed between the boundaries of six months and five years. Within this framework, the specific penalty shall be imposed in accordance with the general criteria applied to determination of a penalty (regarding the perpetrator’s guilt, etc, see Section 32 et seq of the Austrian Criminal Code).

Custodial sentences and monetary fines are thus subject to upper limits (“capped”). The maximum custodial sentence is based directly on the wording of the law (eg, Section 304 (1) of the Austrian Criminal Code: “Custodial sentence of up to three years”, but considers the possibility of exceeding the upper limit in Section 39 of the Austrian Criminal Code).

With regard to monetary fines, the Austrian Criminal Code applies the system of daily rates. For instance, commission of a criminal offence is subject to imposition of a certain number of daily rates – 360, or a maximum of 720 (eg, Section 153a: “[…] or a monetary fine of up to 720 daily rates”). This means that the perpetrator must pay a specific monetary amount per day for a specific number of days (a maximum of 720, but according to Section 19 (1) of the Austrian Criminal Code, at least two). While the number of days – as in the case of a custodial sentence – is determined according to the general criteria applied to determination of a penalty, the amount of the individual daily rate is based on the personal circumstances and the economic capacity of the perpetrator (Section 19 of the Austrian Criminal Code). The perpetrator is to pay such an amount so that merely a subsistence level remains. However, here too, the law sets out a maximum limit: the maximum daily rate that may be imposed totals EUR5,000.

Under certain preconditions, custodial sentences may also be imposed conditionally with a probation period. If a custodial sentence totalling a maximum of two years is imposed, this may be served under certain circumstances by way of house arrest (using an electronic ankle tag).

Assets used for the commission of a criminal offence or obtained through the offence may be declared forfeited. This may in some circumstances also pertain to assets that, at the time of the judicial decision, are not (or are no longer) in the ownership of the perpetrator. Accordingly, this is not a penalty in the strict sense.

If a civil servant is sentenced for a corruption offence (or another intentional offence) to a custodial sentence of over one year or a conditional custodial sentence of over six months, the civil servant is dismissed from office (Section 27 (1) of the Austrian Criminal Code).

Sentencing under the Austrian Corporate Liability Act may have certain secondary consequences for an entity, such as a restriction on licences under the Austrian Foreign Trade and Payments Act as well as on participation in procurement procedures.

A number of corruption offences provide for a minimum penalty, whereby this does not yet mean an unconditional custodial sentence on a mandatory basis (eg, Section 304 (2) of the Austrian Criminal Code: “Custodial sentence of between six months and five years”). The basis for assessment of the penalty is the guilt of the perpetrator. In this context, primarily the demerit (Unwert) in terms of the perpetrator’s attitude and action, and the outcome of the offence must be taken into account.

The Criminal Code sets out a catalogue of specific aggravating and mitigating factors, whereby aspects not included in this catalogue must also be borne in mind. Particular aggravating factors include circumstances where a perpetrator commits several criminal offences or continues the same over a lengthy period, has received a relevant prior conviction, or where the perpetrator is the instigator or ringleader in relation to an offence. The greatest mitigating factor is a repentant confession.

Further mitigating factors include if the perpetrator has previously led a regular life, if they were only involved in a secondary manner, if the offence is already some time in the past, if the proceedings have taken a disproportionately long time for reasons not attributable to the perpetrator or the perpetrator’s defence attorney, if the perpetrator was enticed to commit the offence more due to a particularly attractive opportunity and if they seriously attempted to make good the loss caused or to prevent further detrimental consequences.

In addition to numerous requirements of business undertakings and legal entities under business enterprise and company law, the Austrian Corporate Liability Act is also intended to establish an adequate control system. For instance, a legal entity/partnership is liable for a criminal offence committed by an employee only if commission of the offence was enabled or significantly facilitated on the basis that decision-makers failed to exercise the requisite and reasonable care appropriate to the circumstances, in particular by omitting significant technical, organisational or personnel measures to prevent the offence.

Numerous business undertakings create internal compliance rules, although they are not under any direct statutory obligation to do so. However, special rules do apply with regard to particular sectors/undertakings, such as appointment of a compliance officer.

In practical terms, for a business undertaking and its executive bodies/officers, it would in any event appear advisable to establish comprehensive preventative measures, including compliance rules, to avoid liability under civil law or liability to prosecution under criminal law.

On 1 January 2013, the Austrian Lobbying and Interest Representation Transparency Act (the “Austrian Lobbying Act”) came into force. The purpose of the Austrian Lobbying Act, as stated in the legislative materials, namely “to create clear conditions for activities intended to influence the government decision-making processes”, shall be achieved by three measures. All persons and companies that engage in lobbying:

• must be recorded in the “Lobbying and Interest Representation Register” (the “Register”);
• must submit to certain obligations of conduct, such as:
1. duty to register;
2. duties to provide information (including identity, task, concern, duty to tell the truth, for lobbying companies: the expected fee);
3. prohibitions (claiming a non-existing commissioned or consulting relationship with a functionary, unfair procurement of information, unfair and inappropriate exertion of pressure); and
4. the code of conduct (it should be noted that the code of conduct of the Austrian Lobbying Act is very general and contains a large number of undefined legal terms, which complicates the implementation of the law); and
• must fear sanctions (administrative penalties of up to EUR20,000, or up to EUR60,000 in the event of a repeated offence) and other legal consequences (deletion from the list, nullity of contracts) in the event of non-compliance.

The scope of application of the Lobbying Act concerns activities that are directly aimed at influencing certain decision-making processes in the legislation and enforcement of the federal, provincial government, municipalities and the associations of municipalities.

The Austrian Lobbying Act contains a number of legal definitions.

• “Lobbying activity” means any organised, structured and direct contact with officials for the purpose of influencing certain decision-making processes in legislation or enforcement, private-sector administration of the federal government, the provinces, municipalities and municipal associations.
• “Lobbying mission” is a contract against payment that obliges a contractor to carry out lobbying activities.
• “A “lobbyist” is a person who carries out lobbying activities as a body, employee or contractor of a lobbying company or whose duties include this.
• “Lobbying firm” is a company whose business purpose includes the acceptance and performance of a lobbying assignment (no permanency required).
• “Corporate lobbyist” is an executive body or employee of a company whose duties include lobbying activities for this company, unless the duties are professional obligations defined by law.

From a compliance perspective, two paragraphs are particularly relevant.

• According to Section 6 of the Austrian Lobbying Act, which defines the principles of lobbying activities and representation of interests, lobbyists and interest-representatives are obliged:
1. to disclose their identity, their task and their specific concerns;
2. not to obtain information in an unfair manner;
3. to disclose information truthfully;
4. to inform themselves about, and comply with, activity restrictions and incompatibility rules; and
5. not to exert unfair or inappropriate pressure on functionaries.
• Section 7 of the Austrian Lobbying Act requires lobbying companies or companies that employ corporate lobbyists to base their lobbying activities on a code of conduct, which they must also make public (eg, via a notice on their own website).

The social partners (Sozialpartner) and collective agreement institutions are explicitly excluded from the Austrian Lobbying Act. They are solely obligated to register, as are other self-governing bodies and interest groups, although in addition to the registration obligations the conduct obligations apply to them.

Also excluded from the scope of the Austrian Lobbying Act are political parties, church and religious societies that have been legally recognised, the Austrian Association of Municipalities, the Austrian Association of Cities, the statutory social insurance institutions and their main association, as well as interest groups that do not employ employees as interest representatives.

Furthermore, certain activities – listed in a taxonomic manner – are explicitly excluded. The Austrian Lobbying Act does not apply to:

• activities of public officials in the exercise of their duties;
• activities of a person by which they look after non-entrepreneurial interests of their own;
• the representation of the interests of a party or participant concerning administrative or judicial proceedings;
• legal advice or representation by lawyers, notaries, certified public accountants and other persons authorised to do so; and
• the representation of foreign policy interests in diplomatic or consular dealings carried out upon request by a functionary.

One year before the law was introduced, the Austrian Public Affairs Association (ÖPAV) was constituted as a professional group of public affairs officers in companies, associations, NGOs and agencies. Its members now number more than 80 and work as professional lobbyists in their respective organisations. They have subjected themselves to a strict code of conduct (by means of international guidelines) that goes far beyond the requirements defined in the law. According to international observers, the result is the most comprehensive and progressive guideline in all of Europe.

The Austrian Public Affairs Association sends out a clear signal of transparency and quality to politicians, civil society, as well as to clients and the interested public.

An authority that becomes aware of a suspected criminal offence within its statutory sphere of influence is under a duty to report the matter to the criminal prosecution authorities.

There exists no general obligation under criminal law upon individuals and/or business undertakings to notify breaches of anti-bribery and anti-corruption rules. However, if, for instance, a managing director is aware of a planned or continuing criminal offence and takes no action, although they could do so, it may under certain circumstances be the case that they thereby render themselves guilty of the same offence due to having failed to act as required (Section 2 of the Austrian Criminal Code). Intentionally protecting a perpetrator against criminal prosecution is also prohibited (preferential treatment pursuant to the terms of Section 299 of the Austrian Criminal Code).

The whistle-blower scheme set out in Section 2a (6) of the Austrian Public Prosecution Act (Staatsanwaltschaftsgesetz, StAG) makes it possible to ensure protection of a whistle-blower’s anonymity from a technical perspective.

If the whistle-blower has rendered themself liable to prosecution, the possibility exists of exceptional mitigation or exemption from punishment on the basis of the provision governing prosecution witnesses (see 6.5 Incentives for Whistle-Blowers).

Otherwise, with regard to whistle-blowers, there exist numerous unresolved issues in Austria in terms of civil law, labour law and criminal law.

If whistle-blowers have rendered themselves liable to prosecution, the possibility exists that they may be exempted from any penalty as a prosecution witness, or the penalty applied may at least be subject to exceptional mitigation (see 6.4 Protection Afforded to Whistle-Blowers).

Section 80 (1) of the Code of Criminal Procedure sets out the right of any person who becomes aware of commission of a criminal offence to report the offence to the criminal investigation department or the public prosecutor’s office.

Under the Austrian Public Prosecution Act (Section 2 a (6)), the whistle-blowing system of the Public Prosecutor’s Office for Economic Crime and Corruption has been anchored in statute, as detailed on the website of the Prosecutor’s Office.

In Austria, corruption is fought on several levels. Where a criminal offence is committed, the perpetrator can primarily expect a criminal trial and, subsequently, potentially a monetary fine or custodial sentence. Before a main trial takes place, there is a preliminary investigation, which often takes many years, and which is directed by the public prosecutor’s office.

If, as a result of the perpetrator’s unlawful actions, a loss has been suffered, the parties who have suffered the loss may, to some degree, have asserted their claims already in the criminal proceedings and, in any event, in separate civil proceedings.

Public-sector employees (particularly civil servants) must additionally anticipate disciplinary proceedings by the administrative authorities.

The criminal prosecution authorities against corruption offences in Austria are primarily the Public Prosecutor’s Office for Economic Crime and Corruption, and the Federal Bureau for Anti-Corruption, whereby the ordinary public prosecutor’s offices and the police authorities are also permitted to investigate corruption offences. The public prosecutor’s office directs the preliminary investigation. It may conduct investigations itself or – as is generally the case – refer them to criminal investigators, particularly the Federal Bureau for Anti-Corruption, instructing them to undertake the requisite investigations. The Austrian Code of Criminal Procedure provides for various investigative measures, such as property searches, the securing of documents and monitoring telephone conversations, so that these are available to the criminal prosecution authorities.

The public prosecutor’s office has the possibility of suspending a preliminary investigation where there is no prospect of a successful prosecution. In addition, it may offer the accused the possibility of diversion (that is, an alternative procedure) and terminate the proceedings on this basis. It may also decide on exemption from penalty for a prosecution witness. If none of the aforementioned options enters into consideration, it must bring a charge. In the event of a legally valid indictment, a main trial takes place before an independent court. There are no special courts responsible for corruption matters, but within the criminal courts there often exist specialised panels for this purpose.

Most investigation measures are entrusted by the public prosecutor’s office to the criminal investigation department and these are then conducted by that department. In the event of imminent danger, the criminal investigation department may conduct particular investigation measures without being instructed to do so by the public prosecutor’s office. Instructions concerning investigation measures that encroach upon the fundamental rights of subjects require judicial approval.

In principle, the public prosecutor’s office cannot apply any discretion. If the corresponding preconditions are given for discontinuation, diversion, or the status of a prosecution witness, it must proceed accordingly. Only with regard to the question of which diversion measures enter into consideration – and, in the event of payment of a monetary sum, the amount thereof – does it have a degree of scope. In any event, the accused has a legal right to the manner of proceeding. Arrangements between the public prosecutor’s office, the court and the accused are strictly prohibited.

The public prosecutor’s office is under a duty of objectivity and has a status equal to that of the defendant in the main trial. However, being in charge of the preliminary investigation, de facto it has numerous possibilities which are not open to the accused (for instance, conducting property searches and securing property).

There have been no landmark investigations or decisions in respect of bribery or corruption in the very recent past.

In theory, the penalty ranges up to a ten-year custodial sentence for natural persons (eg, Section 304 (2) of the Austrian Criminal Code) and a fine of EUR1.3 million for entities, whereby both maximum penalties may indeed be even higher under certain circumstances. It would appear that, for a first offence, the maximum penalties have not yet been applied.

The evaluation of implementation and enforcement of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions is undertaken by way of peer reviews, and monitoring consists of several phases. Several reports have been published, the latest in 2017, by way of a follow-up to the report from 2012. In the 2012 report, the working group had recommended that Austria take appropriate steps within its legal system to ensure that nationality jurisdiction applies to Austrian companies that bribe abroad, including by using non-nationals as intermediaries.

Furthermore, the working group issued some recommendations regarding the liability of legal persons for the bribery of foreign public officials, the investigation and prosecution of foreign bribery cases, and the liability of legal persons for the bribery of foreign public officials (for greater detail, see the OECD, Phase 3 Report on Implementing the OECD Anti-Bribery Convention in Austria, December 2012). The follow-up report from 2017 deals with the changes that have occurred in the intervening period (for instance, the decision of the Constitutional Court in relation to the Austrian Corporate Liability Act, VfSlg 20.112/2016, and the introduction of the electronic register of account information).

However, according to the terms of a report published recently by the anti-corruption organisation Transparency International, Austria has taken only “initial steps” with regard to bribery abroad and has thus performed worse than in the last report.

Within the framework of peer reviews, the GRECO examines observance and implementation of the legal instruments respectively approved by the Council of Europe. With regard to the first two evaluation rounds, the setting up and reinforcement of the Federal Bureau for Anti-Corruption, the Public Prosecutor’s Office for Economic Crime and Corruption, and the Anti-Corruption Committee, plus stronger co-operation between various criminal prosecution authorities and the introduction of a code of conduct for civil servants, were all deemed positive. However, it was also noted that Austria has omitted to implement all previous recommendations satisfactorily.

The GRECO’s fourth evaluation round commenced on 1 January 2012 and deals with the topic of “Prevention of corruption in respect of members of parliament, judges and prosecutors”. In the evaluation report, the GRECO recommends that Austria implement a series of measures to prevent bribery. While it was considered positive for law-makers to be treated in the same manner as those in other categories of public office in terms of corruption offences, Austria was deemed to rely too much on the deterrent effect of this provision of criminal law. Thus, there needed to be a requirement, for instance, for internal rules and orientation aids within Parliament regarding the acceptance, valuation and disclosure of gifts, hospitality and other advantages, including external sources of support made available to parliamentarians. The recommendations stated in the GRECO report were to be implemented by 30 April 2018.

The fourth evaluation round (“Prevention of corruption among members of parliament, judges and prosecutors”) is still ongoing. The related evaluation report was published by GRECO in February 2017; the first implementation report in July 2019. This was followed by two interim implementation reports, the first of which was published in March 2021 and concluded that the low level of compliance with the recommendations remained “globally unsatisfactory” in the meaning of Rule 31 revised, paragraph 8.3 of the Rules of Procedure and asked the head of delegation of Austria to provide a report on the progress in the implementation of the outstanding recommendations at the latest by 30 September 2021. This report was received as requested and served as a basis for the present Second Interim Compliance Report.

The Second Interim Compliance Report evaluates the progress made in implementing the outstanding recommendations since the previous Interim Report and provides an overall appraisal of the level of Austria’s compliance with GRECO recommendations. The report concludes that Austria has now implemented satisfactorily or dealt with in a satisfactory manner three of the 19 recommendations contained in the Fourth Round Evaluation Report. Of the remaining recommendations, nine have been partly implemented and seven have not been implemented.

The fifth evaluation round on “Preventing corruption and promoting integrity in central governments (top executive functions) and law enforcement agencies” will continue until at least 2023–24. The related evaluation report was published by GRECO in March 2023.

The status of implementation of the UNCAC in the member states is also checked by way of peer reviews, whereby the results are summarised in reports and recommendations given. The only, and thus the latest, report on implementation of the Convention by Austria dates from 2014 and reviewed the implementation of Chapter III (Criminalisation and Law Enforcement) and IV (International Co-operation) of the UNCAC. The following items were emphasised as strengths of national corruption provisions implementing the aforementioned chapters of the UNCAC:

• the broad interpretation of the concept of “business activities” when applying;
• the provision on bribery in the private sector;
• the broad range of state authorities protected;
• the availability of “extended forfeiture” for assets that are likely to be proceeds of crime if their legal origin cannot be proven to the satisfaction of the court; and
• the fact that the Austrian legislation not only allows the jurisdiction to prosecute when extradition is denied due to nationality, but also allows such jurisdiction when extradition is denied for other reasons not related to the nature of the offences.

However, a number of challenges were also noted in the context of implementing the Convention, consisting of an absence of measures to ensure the effectiveness of the domestic legislation on the criminal liability of legal persons, or measures to expand the protection of whistle-blowers in the private sector. Furthermore, a number of recommendations were made with regard to improvements to procedural law. For greater detail, see the United Nations Conference of the States Parties to the United Nations Convention against Corruption, Implementation Review Group Fifth session, executive summary, CAC/COSP/IRG/I/3/1/Add.11.

Due to government reshuffles in Austria, the Tax Fraud Prevention Act did not come into force in 2020. The aim of this legislation was to increase transparency in the area of direct taxation, with the aim of improving the fight against tax avoidance and tax evasion in the internal market. It shall define the obligation to report cross-border notifiable transactions to the Austrian competent authority within a certain period of time and define the automatic exchange of information between the notifications received and the competent authorities of the other member states. In addition, this law should lead to a tightening of tax and customs offences.

In general, the COVID-19 pandemic has not had a substantial influence on the applicable legislation and/or the enforcement body. However, the pandemic is keeping the legislature busy with a range of related questions, so it is questionable when the federal government will be able to tackle in detail other major legislative changes that are not related to the current health crisis.