Austria Anti-corruption Guide 2022
1. Is your country a member of the OECD Anti-Bribery Convention?
Yes.
2. Is your country a member of any other bilateral or multilateral conventions on anti-corruption?
Austria is a member of the Convention on the Fight against Corruption involving EU Officials or Officials of EU countries. Furthermore, Austria is a member of the United Nations Convention against Corruption and the Group of States against Corruption (GRECO).
3. Are there local anti-corruption laws in your country focusing on corporations, not individuals? If yes, what sanctions can be imposed?
The Austrian Criminal Code (StGB) criminalizes violations of official duty and corruption. It does not explicitly refer to legal entities but to natural persons who may be acting for corporations.
4. Can companies be held liable for acts of corruption under civil or administrative law?
The Association Responsibility Act (Verbandsverantwortlichkeitsgesetz) introduced liability for associations in Austria and thus liability for legal entities. Associations can be prosecuted if a decision-maker or an employee has committed an act that is punishable by law and can be attributed to the association. Associations under the Act are legal entities and partnerships (in particular, stock corporations, European stock corporations, limited liability companies, private foundations, associations, general partnerships, limited partnerships, and European economic interest groupings).
5. Is corruption of individuals punishable?
Yes. One can find relevant regulations in sections 302–310 of the Criminal Code.
6. Are facilitation payments allowed?
No.
7. Is there a legal regulation/maximum limit for accepting or giving gifts, invitations, etc.?
Essentially, no. However, regarding the acceptance of benefits in Austria, there is a distinction between undue and due advantages, the latter being irrelevant under criminal law. In legal literature, a value of less than EUR 100 is considered not undue.
8. Are bribes to foreign government officials prohibited?
Yes.
9. Does your legislation have any extraterritorial reach?
Yes, to certain acts and/or under certain conditions.
10. Is it possible to confiscate assets from the company?
Yes, according to the Code of Criminal Procedure.
11. Does your legislation rely on deferred prosecution or non-prosecution agreements or any other type of non-trial resolution for corruption?
In principle, no. However, Austrian law provides for the discontinuation of criminal proceedings under certain conditions, e.g., if the case is minor (Section 191 of the Code of Criminal Procedure). In addition, there is also the leniency program. This regulation covers offenses under corruption law such as embezzlement, (commercial) serious fraud, and corruption-related offenses such as fraud in the form of a criminal act.
12. Can a company be liable for the acts of its intermediaries or third parties?
Employees and decision-makers who act unlawfully pose a liability risk for companies. Legal entities and partnerships can be held criminally liable under the Associations Liability Act (VbVG). The prerequisite is that a decision-maker or employee has engaged in conduct relevant under criminal law and that one of the attribution criteria specified in the VbVG is met.
13. Can a parent company be liable for the acts of its subsidiaries?
Yes. The responsibility for agents, consultants, lawyers, subsidiaries, etc., lies with the parent company (ultimate beneficiary).
14. Are there any affirmative defenses or exceptions for those accused of corruption acts?
No, there are no special exceptions or affirmative defenses. In principle, all criminal offenses under Austrian law must be committed unlawfully and with fault. The accused person has the possibility of defense in court.
15. Does your jurisdiction require domestic entities to implement anti-corruption internal programs?
Yes, companies listed on the Vienna Stock Exchange are obliged to comply with and implement the Austrian Corporate Governance Code. Unlisted Austrian companies can also voluntarily submit to this code. This code also stipulates that measures or guidelines on corruption must be drawn up. Furthermore, the Association Responsibility Act obliges every company to train employees and distributors in anti-corruption. Otherwise, the company and management can be held personally liable.
16. Is having a compliance program a defense or mitigating factor, while reviewing sanctions?
Yes, having a compliance program will influence the determination of culpability in criminal cases.
17. Could the cooperation with the authorities or an internal investigation be a defense or mitigating factor?
There is no explicit regulation in Austrian Law that states that cooperation with authorities can positively impact sanctions. In practice, such actions can be a mitigating factor.
18. Is there any publicly available guideline issued by the authorities in charge of enforcing anti-corruption laws? For example, manuals on compliance programs, leniency agreements, etc. If so, please provide the link.
There is a Code of Conduct for the Prevention of Corruption in the Public Sector, which the Council of Ministers adopted. It only applies to employees and managers of the public sector in the prevention of corruption. The code explains interdepartmental and inter-territorial regulations of criminal law and civil service law but does not create new norms. It is not binding on or applicable to private companies, nor is it an official guideline for the prosecution of corruption.
Contributors
CMS Reich-Rohrwig Hainz
Rainer Wachter, rainer.wachter@cms-rrh.com
Oliver Werner, oliver.werner@cms-rrh.com