Austria: An About Face In Austria: The Outlook For The Leniency Regime In Criminal Proceedings In 2011

The success of a new leniency regime, as provided for in the Austrian Criminal Code as of 1 January 2011, will depend on whether it gives the whistleblower sufficient incentives to present themselves to the public prosecutor, and whether the regulation offers a high level of predictability for those involved in the case. A number of objections have been raised against the draft version.

Whether it is a spillover from the global economic crisis that the judiciary has to deal with increasingly complex white collar cases, or that the criminal landscape has recently changed, is ultimately irrelevant. The fact is, the legislature wishes to prepare itself to deal with white collar cases and increase efficiency. By means of the proposed leniency regime from January 2011, the legislature is pursuing the goal of exposing complex corruption and white collar crimes.

Cooperating with criminals

Opponents of the leniency regime argue that it would be contrary to the rule of law and, above all, to the common sense of justice if the state were to make a pact with criminals, thereby sparing them their deserved penalty as a reward for their turning leniency. Reaching an agreement with lawbreakers aimed at exempting them from punishment if they assist in solving crimes is deemed questionable as regards the rule of law. However, the risk that those who turn leniency will not testify truthfully, or that the legal institution of the leniency regime could be abused, is limited. This is because whistleblowers would completely forfeit their immunity and, in the event of giving false evidence, be subject to subsequent prosecution.

A successful investigative instrument

From experience gained in the field of antitrust law, however, the leniency regime has proven a successful investigative instrument that has led to the exposure of major cartel cases in Austria in recent years. The anticipated leniency regime in cartel proceedings is widely welcomed by anti-trust lawyers. This is because, the leniency regime in anti-trust cases provides for leniency for undertakings only, not for implicated employees, who may face criminal sanctions for their involvement in, eg, bid-rigging (which is caught by both the cartel prohibition and the criminal code).

The practical experience made in antitrust proceedings raises hopes that the leniency regulation will also be a promising instrument in corruption offences, breaking up the interest groups of offenders and prising them open from the inside. Whistleblowers that break their silence disrupt the secrecy and mutual dependence inherent in corruption cases. Thanks to this major leniency regime, no one can be sure any more that the others involved in a corruption case will not opt for exemption from punishment by turning to the authorities. The foundation of criminal conspiracies and secret agreements would thus be significantly weakened. Companies, too, would be exposed to considerable pressure if their employees or decision-makers were promised immunity in exchange for disclosing criminal actions to the detriment of their employer.

With respect to the efficient and successful application of this major leniency regime, the new law is linked to adequate incentives. Immunity has already proved itself an effective incentive in antitrust law, which can stave off the feared fines for the company. For the accomplice, this major leniency regulation could well be a "golden bridge" by which to leave crime behind and cooperate with investigators. The effectiveness of the regulation will depend on the predictability and safety of the proceedings when it comes to the state witness. The regulation is unlikely to gain importance in practical terms if the incentive for the whistleblower is not strong enough or if they may face personal risk.

The leniency regime

Section 209a of the Austrian Code of Criminal Procedure in the present draft of the federal law on the "criminal competence package" contains proposals regarding the introduction of a leniency regime. The proposed section should come into effect on 1 January 2011 and would be limited to six years. The leniency regime will apply to all serious offences resulting in a sentence of more than five years in prison. It also applies to assisting in the investigation of persons who hold a leading position in a criminal association or a criminal terrorist organisation.

This ambitious proposal is, however, undermined by the present arrangement of the act. Contrary to all expectations, the whistleblower does not go unpunished, but can expect to pay a fine. It is still unclear how much this may be in individual cases. The public prosecutor must proceed as follows: the whistleblower is offered a fine and a provisional suspension of the criminal proceedings is declared. The proceedings are then dropped if the whistleblower pays the fine.


A number of objections have been raised in respect of the draft. One is the lack of a legal right to invoke application of the leniency regulation. Furthermore, it carries a risk of the proceedings being taken up again after their suspension. A whistleblower might be "digging his own grave", impeding a willingness to cooperate. The whistleblower's defence counsel might therefore be reluctant to recommend exposure to the leniency regime.

Currently, there are considerable uncertainties hindering potential state witnesses from testifying before the public prosecutor. The inevitable consequence would be that the employees of potential state witness companies would refuse to cooperate with the Austrian Federal Competition Authority. This would also impair the efficiency of the antitrust law leniency regime. If the leniency regime is to achieve the desired success, the legislature will have no other option but to remove the described obstacles and clarify the material and procedural questions raised.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions