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Anti-corruption In Austria

1. Bribery in the home (private to public)

 

1.1 The Legal Environment

Bribery of public authorities is prohibited under Austrian law, specifically Sections 304 to 308 of the Criminal Code (Strafgesetzbuch or StGB).

 

1.2 What does bribery mean?

Both the party providing the benefit (active bribery) and the party receiving the advantage (passive bribery) may be held accountable under Austrian law.

Bribery is described as offering, promising, or granting a reward to a public official or a third party in exchange for the public official’s influence over their public functions. Bribery is defined by the law as the provision of advantages in exchange for an action or omission that interferes with official duties. Bribery is defined as the provision of “improper” advantages (see definition below) in exchange for an action or omission that is in line with official obligations or with the purpose to gradually influence a public official in the future.

Sections 304, 307 StGB differ between active/passive bribery; Sections 305, 307a StGB distinguish between accepting/granting of advantages; Sections 306, 307b StGB distinguish between accepting/granting of advantages to influence; and Section 308 StGB distinguishes between forbidden interference (see Chapter 1.4 for more detailed discussion).

 

1.3 What does it mean to be a public official?

Section 74 paragraph 1 item 4 of the StGB has the following definition of “public official”:

A public official is a person who has been appointed or elected with official duties in any other way (for example, a park sheriff), including body corporates established by public law (for example, a university), for the Republic of Austria or for any other state or for an international organization, for the Republic of Austria or for any other state or for an international organization.

The definition of a public official was significantly enlarged by the latest amendment to the StGB, which took effect in January 2013, including delegates to the National Assembly and Federal Assembly, as well as the Municipal Council.

Furthermore, since the beginning of 2013, organs or employees of government-owned or controlled corporations (such as the national railway company BB, the public road maintenance firm ASFINAG, or the national postal service Post AG) have been designated as public officials. If an organization or company is: I at least 50% (directly or indirectly) owned by the government; or (ii) otherwise factually dominated by domestic or foreign governments, it is considered to be government-owned or controlled. Furthermore, public authorities include organs or employees of firms that are audited by a Court of Auditors.

 

Bribery’s Consequences (1.4)

(a) For the governmental servant in question

  • Section 304 of the StGB (passive bribery, Bestechlichkeit) states that a public official who demands, takes, or accepts another person’s promise of any benefit for himself or a third party as compensation for the undutiful performance or omission of his official duties is subject to the following penalties: imprisonment for up to three years; imprisonment for up to five years if the benefit’s value exceeds $10,000; imprisonment for up to five years if the benefit’s value exceeds $10,000

  • Section 305 of the StGB (acceptance of a benefit, Vorteilsannahme) states that a public official who demands any kind of benefit for himself or a third party, or who takes or accepts another person’s promise of an undue benefit as compensation for an action or omission that is in line with his official duties, faces up to two years in prison; imprisonment for up to three years is also possible.

  • Section 306 of the StGB (acceptance of a benefit to be influenced, Vorteilsannahme zur Beeinflussung) stipulates that a public official who (for himself or a third party) demands any benefit or takes or accepts another’s person promise of an undue benefit with the intent to be influenced without a connection to a concrete official act shall be punished.

(b) In the case of a private individual

  • Section 307 of the StGB (active bribery, Bestechung) states that anyone who offers, promises, or grants any benefit to a public official for himself or a third party in exchange for the undutiful performance or omission of the public official’s duties is punishable by imprisonment for up to three years; imprisonment for up to five years if the benefit exceeds EUR 3,000; or imprisonment for up to ten years if the benefit exceeds EUR 3,000.

  • Section 307b of the StGB (granting of a benefit to influence, Vorteilszuwendung zur Beeinflussung) imposes a criminal penalty on anyone who offers, promises, or grants an undue benefit to a public official (for himself or a third party) in order to influence the exercise of public office without a concrete official act.

  • Furthermore, Section 308 of the StGB (prohibited intervention, Verbotene Intervention) makes it illegal to demand, accept, or allow oneself to be offered a benefit for oneself or a third party in exchange for excessive influence on a public official’s decision-making. In addition, the person who offers, promises, or grants the advantage is criminally responsible. Both are punishable by up to two years in prison; up to three years in jail if the value of the benefit exceeds EUR3,000; and up to five years in jail if the value of the benefit surpasses EUR50,000.

b) In the case of the corporation or legal body engaged

  • Sections 3 and 4 of the Act on the Criminal Liability of Associations (Verbandsverantwortlichkeitsgesetz or VbVG) regulate the liability of legal companies and other commercial associations. Section 3 states that if a criminal conduct was committed for the advantage of the association or if the commission of the act violates the association’s legal obligations, the association will be held liable.

  • Fines for associations (Section 4 of the VbVG) will be calculated using a conversion key that translates the StGB’s penalties for natural persons into daily rates for legal organizations.

  • Bribery has a maximum penalty of 130 day rates. The judge will decide the daily penalty, which will range from EUR 50 to EUR 10,000 per day, based on the financial status of the legal company, and multiply it by the number of days imposed as a punishment.

  • As a result, the maximum punishment for bribery is EUR 1.3 million.

  • Excursus: Regulations governing the leniency program

  • The newly modified leniency program regulations went into effect on January 1, 2017. The leniency program was extended until December 31, 2021, thanks to the revision.

  • Criminals who commit crimes of a certain gravity have the right to request a withdrawal from prosecution in certain circumstances. The criminal must approach the prosecution in a proactive manner and offer a thorough confession regarding his role in the crime. He must also give information not yet known to the prosecution or police, as well as fully collaborate with such authorities. The information provided must be critical to the overall investigation of the crime.

 

1.5 Contributions from politics

Political contributions are permitted under particular situations and are governed by Section 6 of the Austrian Act of Parties (Parteiengesetz, PartG).

Parties must reveal the identity and address of every donor whose donations total more than EUR 3,500 in a calendar year. Single contributions of more than EUR 50,000 shall be reported quickly to the Austrian Court of Audit, which is required to publish the amount of the contribution on its website together with the contributor’s name and address.

Furthermore, political parties are prohibited from accepting political contributions from firms that own at least 25% of the company. Furthermore, the Austrian Act of Parties, Section 6 paragraph 6 n 8 and 9, rules the prohibition of anonymous political contributions of more than EUR 1,000 and political donations of more than EUR 2,500 when paid in cash.

 

1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)

Benefits are only permitted under Austrian criminal law if they are not given to unfairly influence a public person.

Three criteria are used to determine if a hospitality spending could be deemed an evidence of public official corruption:

(a) It is criminal at any time if a public official deliberately demands a certain hospitality expense.

(b) However, the exemption rule of “low-value hospitality expenses in conformity with local customs” was recently developed. Expenses that are below a specific sum (case law considers perks of up to EUR 100 to be minor for public officials) and in accordance with local customs are not considered as an improper or not-insignificant advantage.