Austria: New Anti-Bribery Regime In Austria

As of 1 January 2013, a new anti-bribery regime will be effective in Austria. The amendments of the Austrian Criminal Penal Code (Strafgesetzbuch) basically broa-den and intensify the prosecution of corrupt behaviour and strengthen Austria's fight against bribery. The following summary outlines the the updated approach to com-batting bribery and bribery-related offences in the amended Korruptionsstra-frechtsänderungsgesetz 2012 (Federal Law Gazette No I 61/2012).

Definition of public official

The definition of the public official (Amtsträger) has been extended. The new regime also covers all employees and officers of state-owned enterprises and enterprises who are (partially) directly or indirectly controlled by a regional administrative body. According to the new definition, the term "public official" shall mean any individual who (is):

(i) a member of a national constitutional representative body, if he/she gives his/her votes in such an representative body, or otherwise carries out or omits to carry out an action in the performance of his duties as defined in the regulations for its rules of procedure;

(ii) takes over assignments of legislation, administration or justice as its body or employee, for the state, a federal state, an association of local authori-ties, a municipality, another corporate body under public law (except a church or religious community) for another state or for an international or-ganization;

(iii) otherwise authorized on behalf of the entities listed in (ii) to carry out offi-cial duties in the enforcement of laws; or

(iv) acts as a body or employee of a company of which one or several domestic or foreign regional administrative bodies directly or indirectly hold at least 50% of the share capital, joint stock, or proprietary capital, which runs such a regional administrative body, alone or together with other such re-gional administrative bodies, or actually controls it by financial or other economic or organisational means; at any rate, every company whose be-haviour is subject to an audit by the audit court, federal institutions equal to the audit court, or a comparable international or foreign controlling insti-tution.

Corruptibility of public officials for conduct contrary to duty

It is a crime to provide, promise, or offer to any public official or judge in arbitration courts a benefit for him/herself or a third party for the conduct or omission of his/her function incumbent upon him/her. It is also a crime to provide, promise, or offer to a court expert (Sachverständiger) an advantage for her/him or a third party for an incorrect expert finding. An advantage is any performance of a material or immaterial nature that puts the bribed party into a better position (useful for him/her or a third party) and to which he/she does not have a legal claim.

The crime is sanctioned with a prison sentence of up to ten years' imprisonment.

Undue advantages to public officials for proper performance

The offering, promising or granting of an undue advantage to a public official or a judge in arbitration courts in reference to the lawful performance or omission shall be punished. In this context, benefits are not undue if,

(i) the acceptance of the advantages is legally permitted (1st alternative), or they are granted in the context of events, the participation in which consti-tutes an interest that is functionally or factually justified (2nd alternative),

(ii) advantages for charitable purposes (Para 35 of the Federal Fiscal Code), on the utilization of which the public official does not exert any dominating in-fluence, as well as

(iii) for want of permission norms in the sense of (i), locally customary assidu-ities of small value, lest the deed is perpetrated on a commercial basis.

The crime is sanctioned with a prison sentence of up to five years' imprisonment.

Undue advantages to public officials for improper performance

The offering, promising or granting of an undue benefit to a public official or judge in arbitration courts in order to intentionally influence his/her lawful performance or omission shall be punished.

The crime is sanctioned with a prison sentence of up to five years' imprisonment.

Prohibited intervention

It is a crime if a person demands, accepts or allows him/herself to be promised an advantage for him/herself or for a third party for the exercise of an undue influence on the decision by a public official or an arbitration court judge. The crime is sanc-tioned with a prison sentence of up to two years' imprisonment.

Similar punishment shall be imposed on whoever provides, promises, or offers an advantage to a person who exercises an undue influence on the decision by a public official or an arbitration court judge. The crime is sanctioned with a prison sentence of up to five years' imprisonment.

The influence on the decision by a public official or an arbitration court judge is un-due if (i) it aims at the unlawful performance or omission of a public official that is in breach of his/her duty, or (ii) an undue advantage to the public official or a third party is granted, offered or promised in relation to the undue influence.

Bribery acceptance of gifts and corruption of employees or agents

It is a crime if an employee or agent of an enterprise demands, accepts or allows him/herself to be promised an advantage for him/herself or for a third party for the performance or omission of an act in breach of his/her duties in the course of trade.

Similar punishment shall be imposed on whoever provides, promises, or offers an advantage to an employee or an agent of an enterprise or a third party in the course of trade for the unlawful performance or omission of an act in breach of the employee's or agent's duties.

The crime is sanctioned with a prison sentence of up to five years' imprisonment.

Financing of Political Parties

According to the new Austrian Act on the Financing of Political Parties (Parteienge-setz 2012) effective since 1 July 2012, all grants shall be disclosed in a political party's accounting report. The Annex to the political party's accounting report shall list the receiving party of the grant. In the event that a political party receives grants exceeding EUR 3,500 per anno, the name and address of the granting party shall be disclosed in the report. Grants to a political party exceeding EUR 50,000 shall be reported to the Austrian Court of Auditors (Rechnungshof) and will be pub-lished immediately on that institution's website.

The acceptance of the following grants is prohibited for political parties:

(i) Grants to political parties from:

a. political groups (parlamentarische Klubs);

b. public law-based entities or bodies;

c. public law-based entities and institutions in which public bodies hold 25% or more of shares;

d. natural or legal persons in case the grant is given cash and ex-ceeds EUR 2,500; as well as

e. foreign natural or legal persons in case the grant exceeds EUR 2,500.

(ii) grants exceeding EUR 1,000 made on an anonymous basis or made for an anonymous third party; and those

(iii) from natural or legal persons when it is recognizable that grant aims a cer-tain economical or legal advantage for the granting party or is made as in return for a certain act or omission by the political party.

Any sponsoring of political parties (including payments and payments in kind) ex-ceeding EUR 12,000 per year shall also be reported, as must the political party's in-come from advertisements in publications or platforms owned by the political party if the advertisement cost exceeds EUR 3,500.

It should be noted that the Act on the Financing of Political Parties is an administra-tive act only. Violations of the above provisions (which have been committed inten-tionally) are sanctioned with monetary fines of up to EUR 20,000. In case a political party or its members are involved in bribery or related offences, the anti-bribery provisions in the Austrian Criminal Code apply.

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.

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