White Collar Crime Comparative Guide

1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions govern white collar crime in your jurisdiction?

There is no generally applicable definition of ‘white collar crime' in Austria. The primary source of general criminal law in Austria is the Criminal Code. In addition, specific provisions related to white collar crime are dispersed among various laws, including:

• the Financial Crimes Act;
• the Stock Corporation Act;
• the Stock Exchange Act 2018;
• the Limited Liability Companies Act;
• the Federal Act against Unfair Competition; and
• the Act on Corporate Criminal Liability.

Whether a provision is considered to constitute white collar law depends on its protective purpose. Put simply, the purpose of white collar law is (as the name suggests) to combat white collar crime – that is, any conduct that is associated with an economic, commercial activity. Therefore, a provision can be qualified as applicable to white collar crime if it is based on the fact that:

• a criminal act has been committed in the context of a commercial activity; and
• the interests of the general public are affected.

1.2 Which bilateral and multilateral instruments of relevance to white collar crime have effect in your jurisdiction?

Regarding the relevance of bilateral and multilateral instruments in the context of white collar crime, it is important to differentiate between international treaties and EU law. Examples of applicable multilateral agreements include the decisions of the UN Security Council on economic sanctions. In terms of supranational rules and standards, EU law has the most significant influence on Austrian criminal law and thus also on the white collar crime regime.

For example, the European Commission is authorised to impose fines in the event of infringements of competition law. The harmonisation of economic criminal law by EU member states has also been increasingly promoted under EU law. According to the principle of assimilation, member states must punish infringements of EU law in the same way as similar infringements of national provisions. In this respect, Article 325 of the Treaty on the Functioning of the European Union (TFEU) is of particular importance, as it obliges member states to combat fraud and other illegal activities directed against the financial interests of the European Union with the same measures as they would take to combat fraud directed against their own financial interests.

In addition, pursuant to Article 83 of the TFEU, the European Union may, in accordance with the ordinary legislative procedure, set out minimum rules concerning the definition of criminal offences and sanctions in relation to particularly serious crimes which have a cross-border dimension because of:

• their nature or impact; or
• a special need to combat them on a common basis.

These include in particular:

• money laundering;
• corruption;
• counterfeiting of means of payment; and
• cybercrime.

One particularly important instrument is the mutual recognition of decisions in criminal matters. Probably the best-known example is the European arrest warrant, but the mutual recognition of financial penalties and custodial sentences and the European investigation order are also of fundamental importance. Mutual recognition concerns, in particular:

• the admissibility of evidence between member states;
• the rights of individuals in criminal proceedings;
• the rights of crime victims; and
• under certain conditions, other specific aspects of criminal proceedings.

In this context, it is also important to note the primacy of application of EU law, which also applies vis-à-vis national criminal law.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?

White collar criminal offences are primarily governed by criminal law and prosecuted by the Austrian public prosecutors' offices, which are established at each location of a regional court that has jurisdiction over criminal cases. These offices are responsible for investigating and prosecuting crimes within the jurisdiction of that court and the district courts subordinate to the regional court, where they may be represented by district prosecutors. Most of these district prosecutors are not trained lawyers but specially trained civil servants. District prosecutors handle crimes with low penalties only.

About 10 years ago, a public prosecutor's office specifically responsible for corruption and white collar crime was established: the Public Prosecutor's Office for the Enforcement of Business Crimes and Corruption. Among other things, it is responsible for:

• serious official and corruption offences; and
• white collar criminal and financial offences with damages exceeding €5 million.

Other authorities may also be responsible for prosecuting business crime offences, such as the financial criminal authorities for certain financial offences.

The public prosecutor:

• is responsible for:
• • initiating criminal proceedings; and
  • investigating, pressing charges or suspending investigation procedures; and
• is assisted in his investigations by the criminal police.

Judicial authorisation is required for some investigative measures. The respective investigative measures are enumerated and regulated in the Code of Criminal Procedure – for example, especially in criminal proceedings, the prosecuting authorities can order seizures or freeze accounts. In general, the Austrian law enforcement authorities have numerous powers at their disposal for gathering evidence. For instance:

• witnesses can be questioned;
• houses searched;
• documents seized; and
• conversations intercepted.

In addition, there are various administrative agencies that can impose administrative sanctions depending on the sector in which the infringement occurs.

1.4 What is the general approach of the authorities in enforcing the applicable laws and regulations?

The Criminal Code differentiates between:

• offences to be prosecuted ex officio; and
• offences for which victims must:
• • authorise prosecution; or
  • file charges themselves.

However, most offences – both in general criminal law and in white collar criminal law – are prosecuted ex officio.

The criminal police and the public prosecutors' offices must investigate ex officio any initial suspicion of a criminal offence that comes to their attention which is not merely to be prosecuted at the request of a person entitled to do so. In practice, criminal offences are often actively reported to the police or prosecutors' offices and the authorities then begin their investigation.

In order to clarify the facts, the law enforcement authorities then make use of the investigative measures to which they are entitled under the Code of Criminal Procedure (see question 1.3). On the basis of the investigated facts, the prosecutor's office will then decide whether:

• charges will be brought against the defendant; or
• the proceedings will be discontinued.

2 Scope of application

2.1 Can both individuals and companies be prosecuted under the white collar crime laws? Under what circumstances are employees' actions attributable to the company?

The Act on Corporate Criminal Liability regulates the liability of associations (eg, stock corporations, limited liability companies) for criminal offences committed by their decisionmakers and employees where there have been violations of duties affecting the association. The decisive factor is that the criminal offence of a decisionmaker or an employee can be attributed to the association. The criminal offence must have either:

• been committed for the benefit of the association; or
• violated obligations affecting the association.

While criminal offences committed by decisionmakers can be attributed to the association immediately, additional criteria must be met for criminal offences committed by employees. So-called ‘organisational culpability' on the part of the association is required – that is, the criminal offence must have been made possible or substantially facilitated by the negligence of a decisionmaker (eg, if reasonable and necessary technical, organisational or personnel measures to prevent such criminal offences were taken). A criminal offence is attributable to the association if an employee acted unlawfully; fault on the part of the employee is not required.

2.2 Can foreign companies be prosecuted under the white collar crime laws?

Yes, foreign companies are liable to prosecution under white collar laws in Austria if a criminal offence is committed within its territory according to Sections 62 and following of the Criminal Code; and the foreign associations are also subject to the Act on Corporate Liability.

2.3 Can successor companies be prosecuted under the white collar crime laws?

Yes, the Act on Corporate Criminal Liability contains a legal succession clause which provides that in the event of legal succession, the legal consequences provided for in the act will affect the legal successor. If there is more than one legal successor, a fine imposed on the legal predecessor may be enforced against any legal successor.

2.4 Do the white collar crime laws have extraterritorial reach?

In principle, according to Section 62 of the Criminal Code, the principle of territoriality applies, whereby each state may impose punishment only if the act has a connection to its own territory. In addition to the principle of territoriality in international criminal law, acts committed abroad can be punished with certain limitations under the principles of personality and universality. For example, counterfeiting money or securities in Austria can be prosecuted without regard to the law of the place of the offence if:

• the conditions provided in the law are met; and
• Austrian interests have been violated.

This also applies to organisations based in Austria that commit offences abroad for which Austrian criminal law provides for punishment in Austria.

Furthermore, EU law provides for the establishment of minimum rules both:

• for defining crimes and penalties; and
• for setting minimum rules that allow for police and judicial cooperation in cross-border criminal matters.

3 Offences

3.1 What types of white collar crimes are recognised in your jurisdiction and what do they involve?

The lack of a universally accepted definition of the term ‘white collar crime' poses a challenge for categorisation. Nonetheless, the following offences or categories of offences provide illustrative instances, as follows.

Securities fraud: Under Austrian criminal law, a person commits fraud if, by deceiving someone about facts, he or she causes that person to do, tolerate or refrain from doing something that harms that person or another person's property, with the intention of unlawfully enriching himself or herself or a third party through the deceived person's conduct.

The Stock Exchange Act 2018 should be mentioned in connection with securities fraud. This act regulates the administrative offence of misusing insider information and market manipulation as well as market manipulation punishable by court.

Accounting fraud: While for a long time in Austria accounting fraud offences were scattered throughout several laws (eg, the Stock Corporation Act, the Limited Liability Company Act), accounting fraud offences were included in the Criminal Code in 2016.

Decisionmakers and authorised representatives are liable to prosecution if, for instance, they misrepresent the net assets, financial position or results of operations of a company by providing false or incomplete information – for example, in the annual financial statements or at the annual general meeting – if this is likely to cause significant damage (eg, to the company, shareholders, creditors).

Insider trading: The misuse of inside information is both an administrative criminal offence and a criminal offence. The relevant provisions can be found in the Stock Exchange Act 2018. It is a criminal offence to exploit insider information for oneself or a third party. This can be done by:

• buying and selling securities;
• changing or cancelling trading orders; or
• recommending securities or passing on the information to third parties.

Embezzlement: Austrian criminal law distinguishes between two types of embezzlement:

• ‘Untreue' is committed when someone knowingly abuses his or her authority to dispose of or to oblige another person to dispose of another's property and thereby damages that property. A person abuses his or her authority if he or she unreasonably violates such rules that serve to protect the assets of the beneficial owner.
• ‘Veruntreuung' is committed when someone appropriates something entrusted to him or her or to a third party with the intention of unlawfully enriching himself or herself or the third party thereby.

Bribery of government officials: The criminal offence of bribery of public officials is comprehensively regulated. In principle, both sides are liable to prosecution – that is:

• the public official who demands an advantage; and
• the person who promises an advantage to a public official.

A public official is liable to prosecution if he or she demands, accepts or allows himself or herself to be promised an advantage for:

• performing or omitting an official act in breach of his or her duty; or
• performing or omitting an official act for himself or herself or a third party in breach of his or her duty.

A public official will also be liable to prosecution if he or she demands an advantage for himself or herself or a third party, or accepts or allows himself or herself to be promised an undue advantage, with the intention of allowing himself or herself to be influenced in his or her activity as a public official.

Also, a person who offers, promises or grants an advantage to a public official or a third party will be liable to prosecution.

Criminal anti-competition: The Criminal Code prohibits agreements that restrict competition in public procurement procedures. Anyone that submits a request to participate in a procurement procedure or submits a bid or conducts negotiations based on an unlawful agreement aimed at inducing the contracting authority to accept a particular bid is liable to prosecution. Punishment for fraud also appears to be possible in such cases.

Price agreements between bidders in private tenders may constitute fraud.

The Federal Act against Cartels and other Restraints of Competition 2005 prohibits, among other things, the abuse of a dominant market position. Such abuse may involve, in particular, demanding purchasing or selling prices or other business terms and conditions that deviate from those that would be very likely to arise if effective competition existed, taking into account, in particular, the conduct of commercial entities in comparable markets with effective competition.

Cartels and other competition offences: The Cartel Act prohibits, among other things, all agreements between undertakings, decisions by associations of undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition.

The Federal Act against Unfair Competition prohibits, for example, aggressive or misleading business practices in order to protect commercial entities and consumers. In the event of violations, penalties are possible, in addition to actions for injunctive relief and damages.

Tax crimes: The Financial Crimes Act regulates a wide range of financial offences. Some fall under the jurisdiction of the courts; others are the responsibility of the tax authorities. Offences include:

• tax evasion;
• smuggling;
• tax fraud; and
• cross-border value added tax fraud.

Government contracting fraud: Reference is made to the previous remarks.

Separate criminal offences have been created with regard to:

• expenditure fraud that is detrimental to the financial interests of the European Union; and
• misappropriation of funds and assets that is detrimental to the financial interests of the European Union.

Environmental crimes: The Criminal Code regulates criminal offences against the environment. These include, for example, intentional and negligent environmental damage.

Campaign finance/election law: Regulations in this regard can be found in the Federal Act on the Financing of Political Parties 2012. This states, for example, that each political party must publicly report annually on the nature of its income and expenditure in an accountability report. The Court of Auditors reviews the reports. Donations and other benefits to parties are also regulated. There are limits and reporting requirements.

Market manipulation in connection with the sale of derivatives: The Stock Exchange Act 2018 criminalises market manipulation and refers to relevant EU legislation (the Market Abuse Regulation and the Markets in Financial Instruments Directive). Some of the offences are administrative violations that are prosecuted by the Financial Market Authority, while others are punishable by the courts.

Money laundering or wire fraud: The criminal offence of money laundering has gained importance in recent years, also due to EU legislation.

The criminal provision covers money laundering on the basis of two different connecting factors:

• assets that originate from a specific predicate offence; and
• without a specific predicate offence being relevant, assets that belong to a terrorist organisation.

Extensive auditing and reporting requirements have been introduced in numerous areas to combat money laundering. These apply, for example, to:

• credit and financial institutions;
• insurance companies; and
• lawyers and notaries.

These parties must carefully check all transactions in which they carry out financial or real estate transactions on behalf of and on the account of their clients and so on.

Cybersecurity and data protection law: The Criminal Code recognises several offences related to cybercrime.

Criminal offences include:

• unlawful access to a computer system;
• violation of telecommunications secrecy;
• improper interception of data;
• data damage;
• disruption of the functioning of a computer system; and
• misuse of computer programs or access data.

In addition to these specific offences, general offences such as fraud may also apply.

The Data Protection Act contains a fundamental right to data protection. In addition, the EU General Data Protection Regulation is directly applicable in Austria.

Trade sanctions and export control violations: The Foreign Trade and Payments Act 2011 has implemented key EU law requirements and contains provisions on:

• export controls;
• the control of the movement of defence goods within the European Union; and
• the control of the takeover of Austrian companies by persons or companies from third countries (outside the European Union, the European Economic Area and Switzerland).

In the event of violations, the law provides for consequences under administrative criminal law as well as offences punishable by the courts.

3.2 How are predicate offences defined in your jurisdiction?

There is no specific legal definition of the term ‘predicate offence' in the Criminal Code. Essentially, a ‘predicate offence' is a criminal act that must occur as a prerequisite for another offence to be committed. The determination of what qualifies as a predicate offence is primarily defined by the law.

For example, in the case of money laundering (Section 165 of the Criminal Code), the law requires that someone transfers assets to another person that are derived from a criminal activity with the intent to conceal their illegal origin. With regard to money laundering, a criminal activity – and thus a predicate offense – is any act that is punishable:

by imprisonment for more than one year; or

under:

• Sections 223, 229, 289, 293 and 295 of the Criminal Code; and
• Sections 27 and 30 of the Narcotic Substances Act.

For this purpose, the offence must also be subject to Austrian criminal laws. In certain cases, predicate offences also include foreign offences.

3.3 Do any restrictions or thresholds (eg, in terms of parties, asset type or transaction value) serve to limit the types of activities that constitute white collar crimes?

No, there are no specific thresholds or restrictions in this regard. However, certain thresholds apply in terms of the competence of the investigating authority.

Business crime offences are prosecuted by either:

• the public prosecutors' offices; or
• the specialised Public Prosecutor's Office for the Enforcement of Business Crimes and Corruption.

The latter is mainly responsible for handling:

• official and corruption offences; and
• whitecollar criminal and financial offences with damages exceeding €5 million.

In addition, it may take over a white collar case from the competent public prosecutor's office if special economic knowledge or experience with such proceedings is required for the effective conduct of the proceedings.

3.4 What are the most common offences for which company directors and officers can be held personally liable?

Directors and officers can face liability claims brought by:

• third parties (external liability); or
• the company itself (internal liability).

Claims related to a company's insolvency are the most common instances of external liability, although cases of external liability are relatively rare in practice. The most common claims regarding personal liability usually revolve around internal liability matters. Due to the liability standards for directors and officers, which are generally defined and assessed based on the care of a prudent and diligent manager, a wide scope of discretion arises in practice.

4 Compliance

4.1 Is the implementation of a compliance programme a regulatory requirement in your jurisdiction? If so, what should this cover?

In particular with regard to the provisions on stock corporations, it may be assumed that there is a certain minimum compliance obligation. Among other things, the management board of a public limited company must ensure that violations of the law or of contractual obligations by other management board members or employees are counteracted in advance by means of suitable measures. The management board should set up an internal control system accordingly.

Even if the principle of voluntariness often prevails, exceptions can be found in the Banking Act and the Stock Exchange Act, among others.

The Corporate Governance Code also provides listed companies with a specific set of rules for good corporate governance. The Corporate Governance Code is not a legal regulation, but rather a set of recommendations for good corporate governance.

In 2023, Austria implemented the EU Whistleblower Directive (2019/1937) into Austrian national law (Whistleblower Protection Act). Companies and legal entities under public law with at least 50 employees must set up an internal whistleblower system.

As explained in question 6.5, establishing a suitable compliance system may allow decisionmakers and the association to avoid liability for criminal acts of employees.

4.2 Does failure to implement an adequate compliance programme constitute a regulatory and/or criminal violation in your jurisdiction?

As there is no general obligation to establish compliance mechanisms, it is necessary to refer to the specific laws when considering the imposition of potential penalties. Certain specialised laws do impose obligations to implement compliance measures. For example, credit institutions, under Section 39 of the Banking Act, must establish appropriate principles and procedures to detect violations of the provisions set out in the act by employees and the associated risks, reducing these risks to a minimum. Certain credit institutions must also:

• establish permanent and independently operating compliance offices with monitoring and assessment functions; and
• direct access to the management.

Failure to comply with the compliance measures outlined in the special laws may result in cases of liability, criminal penalties or administrative penalties.

4.3 What due diligence requirements apply in relation to customers, partners, suppliers etc?

Among other things, customer due diligence obligations must be observed to prevent the use of the financial system for money laundering and terrorist financing. The minimum standards set by the EU Anti-Money Laundering Directive have been implemented in Austria through laws such as:

• the Financial Market Anti-money Laundering Act;
• the Trade Regulation Act;
• the Lawyers' Act; and
• the Gambling Act.

According to these laws, obligated entities must:

• obtain sufficient information about the identity of their customers and their beneficial owners (verified through the Register of Beneficial Owners);
• gather information about the purpose and nature of the intended business relationship and the source of funds used; and
• update this information regularly and continuously monitor the business relationship.

Compliance with due diligence and reporting obligations not only serves to prevent money laundering and terrorist financing, but also supports the work of law enforcement authorities.

With regard to supplier due diligence, the Corporate Sustainability Due Diligence Directive which is currently under development in the European Union aims to introduce cross-sector due diligence requirements throughout its value chain. Currently, Austria has no comparable national law, as is the case in countries such as Norway and Germany. Companies are expected to be held accountable for identifying, preventing, mitigating and having appropriate corporate governance and management systems in place to address the negative impacts on human rights and the environment caused by their activities along their supply chain.

4.4 What books and records requirements apply in this context?

There are special laws that provide for compliance measures including books and records requirements, which differ depending on the type of company.

One notable criminal offence in this regard is found in Section 159 of the Criminal Code and concerns the grossly negligent impairment of creditors' interests. According to this provision, it is, among other things, punishable to endanger the interests of creditors by:

• failing to keep business books or business records; or
• keeping them in such a way that makes a timely overview of the true assets and the financial situation considerably more difficult.

4.5 What other compliance best practices should a company implement to mitigate the risk of white collar crime?

Establishing a compliance management system requires, in particular:

• regular evaluation of the system;
• appropriate backing for the company management with regard to the establishment of such a system;
• the establishment of a whistleblower protection system; and
• regular training of management personnel.

4.6 Must companies report financial irregularities or actual or potential violations?

There are no reporting obligations for criminal acts for individuals or companies in principle.

In Austrian criminal law, however, there are provisions that incentivise self-reporting by offering immunity from prosecution for certain offences. For instance, Section 167 of the Criminal Code on ‘active repentance' lists specific offences (eg, embezzlement) for which, when certain conditions are met, self-reporting leads to exoneration. A similar incentive is also provided by Section 39 of the Financial Crimes Act for self-reporting of financial offences.

4.7 What factors will the authorities consider in assessing the adequacy of a compliance programme?

Company-specific aspects play an important role in determining the adequacy of a compliance management system. For example, compliance requirements naturally vary between different companies, especially when it comes to their size and the number of employees. The authorities will assess whether:

• the compliance programme is designed to ensure adherence to all relevant laws and regulations, including those specific to the industry in which the company operates;
• the compliance programme is not only implemented, but also capable of effectively identifying and addressing potential risks; and
• the compliance programme includes monitoring mechanisms to detect and report irregularities, as well as a procedure for handling and escalating potential issues; and
• training and awareness programmes are in place to ensure that employees are informed about compliance requirements and expectations.

5 Investigations

5.1 How are investigations typically commenced in your jurisdiction?

See questions 1.3 and 1.4.

5.2 What investigative powers do the authorities have?

See question 1.3 – the law enforcement authorities have extensive powers at their disposal when it comes to gathering evidence, such as:

• questioning witnesses;
• searching houses;
• seizing documents; and
• intercepting conversations.

5.3 Can the authorities demand that a company under investigation produce documents? When can the authorities search the premises and seize documents of a company under investigation

Documents, data carriers, mobile phones and other objects can be seized by the authorities for evidentiary reasons. In general, this requires an order from the public prosecutor's office. Only in exceptional cases does the criminal police act on its own initiative. In this regard, there is also an obligation:

• to surrender the items to be seized at the request of the criminal investigation department; or
• to enable the seizure in some other way.

If cooperation in the seizure is refused, the criminal investigation department is authorised to use coercion.

The search of places and objects is permissible if it can be assumed, on the basis of certain facts, that:

• a person suspected of committing a criminal offence is hiding there; or
• evidence is present that may need to be secured or evaluated.

This requires an order from the public prosecutor's office as well as court approval.

5.4 Do the authorities typically cooperate with their foreign counterparts in conducting an investigation? If so, what is the process for doing so?

The Austrian authorities can and regularly do seek legal assistance from foreign authorities, especially within the European Union. The most common instrument in this respect is the so-called ‘letter rogatory'.

Within the framework of letters rogatory, the following forms exist in particular:

• the return of objects obtained as a result of a criminal act;
• the transfer of detained persons for investigative purposes;
• the questioning of witnesses and experts by videoconference;
• the formation of joint investigation teams; and
• the interception of telecommunications traffic.

Requests:

• are usually transmitted via the ministries of justice or between the judicial authorities themselves; and
• are generally executed in the manner provided for by the legal system of the requested state.

Such requests can only be refused in certain cases (eg, political crimes or threats to the sovereignty or security of the country) and reasons must be given for each refusal.

Another important instrument when it comes to cooperation with foreign authorities is the European arrest warrant.

5.5 What rights do companies and their directors and officers have during an investigation (eg, in relation to interviews/privacy and data protection)?

Accused persons/defendants have various rights in the preliminary proceedings. These include, in particular, the right:

• to be informed of the suspicion and the rights to which they are entitled;
• to choose a defence attorney or – if the accused is financially unable to choose one – to receive a defence attorney through legal aid;
• to access records;
• to comment on the accusation or not to testify, as well as to contact and discuss with a defence attorney – this includes the right to avoid self-incrimination;
• to have a defence attorney present at his or her interrogation;
• to make requests for evidence;
• to object to acts of the public prosecutor's office and to appeal against court approvals;
• to request the termination of the proceedings;
• to participate in the trial;
• to appeal; and
• to receive translation assistance.

In addition to natural persons, associations/companies are also eligible as defendants and therefore also benefit from the aforementioned rights. All decisionmakers must be heard as defendants in corporate criminal liability proceedings, regardless of whether they are actually accused.

5.6 What rules govern attorney-client privilege in your jurisdiction and what are their implications in the context of white collar crime investigations?

Defence attorneys are entitled to refuse to testify about circumstances that have become known to them in their capacity as attorneys. This right to refuse to testify may not be circumvented; otherwise, the measure will be null and void. The prohibition of circumvention concerns in particular the seizure and confiscation of documents or information on data carriers. In addition, it is also prohibited to seize letters, emails or notes made for the purpose of consultation and defence.

Also, a defence attorney's office premises may not be searched to circumvent the right to refuse to testify.

5.7 What factors will the authorities consider in assessing whether to bring charges?

After completion of the preliminary proceedings, the question of whether the public prosecutor's office brings charges will depend on the probability of conviction in the main proceedings. After sufficient clarification of the facts, the public prosecutor's office must assess from its point of view, whether a conviction is more likely than an acquittal (ie, more than 50%). If this is the case, it must file charges.

6 Enforcement

6.1 What is the structure of the criminal courts in your jurisdiction?

In general, at first instance, either a district court or a regional court will issue a ruling. The district courts have jurisdiction to rule on all criminal offences for which a mere fine or imprisonment not exceeding one year is threatened. The regional courts have jurisdiction to rule on all misdemeanours and felonies for which imprisonment exceeding one year is threatened, as well as – regardless of the threat of punishment – over certain offences specified in the law (eg, dangerous threat).

While cases before the district courts are always adjudicated by a single judge, the composition of regional courts varies. Criminal offences punishable by life imprisonment or by a threatened minimum sentence of more than five years and additionally a maximum sentence of more than 10 years, as well as other special offences mentioned in the law (eg, political crimes), are tried before a panel consisting of three professional judges and eight jurors. Criminal offences punishable by a minimum sentence exceeding five years that do not fall within the competence of these panels, as well as offences mentioned in the law (eg, embezzlement and serious fraud if a certain amount of damage has been exceeded or there was an intention to exceed it) are tried before a panel of one or two judges and two lay jurors. Other criminal offences are decided by a single judge.

There are no specialised criminal courts for any particular crimes.

At second instance, the higher regional courts and/or the Supreme Court have jurisdiction, depending on:

• which court had jurisdiction at first instance; and
• the nature of the appeal.

6.2 Are white collar crimes tried by jury in your jurisdiction?

Whether a case is decided by a jury or a single judge depends on the parameters mentioned in question 6.1, so that as a result, some white collar crimes are tried by a jury and some by a single judge.

A fundamental right of the accused to a jury trial does not exist in Austria, as the provisions on the composition of the court are mandatory.

6.3 What is the statute of limitations for prosecuting white collar crime in your jurisdiction?

The statute of limitations always depends on the threat of punishment for the respective offense. Specifically, one can distinguish between the following time limits:

• Threat of punishment of more than 10 years' imprisonment: 20-year limitation period.
• Threat of punishment of five to 15 years: 10-year limitation period.
• Threat of punishment of one to five years' imprisonment: Five-year limitation period.
• Threat of punishment of six months to five years: Three-year limitation period.
• Threat of punishment of up to six months: One-year limitation period.

However, criminal acts punishable by imprisonment for between 10 and 20 years or life imprisonment, as well as crimes under international criminal law (genocide, crimes against humanity, war crimes), are not subject to the statute of limitations.

The statute of limitations does not begin to run for offences that are ongoing until the last criminal offence is completed.

6.4 Can parties that voluntarily report white collar crime or cooperate with investigations benefit from leniency in your jurisdiction?

Initially, leniency in the sense of a principal witness rule was introduced for a limited period for the purpose of evaluation and would have expired at the end of 31 December 2021. However, it was subsequently extended a further seven years until 2028 (BGBl I 2021/243).

The offender must:

• voluntarily approach and cooperate with the prosecution or the criminal police; and
• make a remorseful confession.

If all legal requirements for granting leniency are met, the prosecution must proceed as in the case of ‘diversion'. The principal witness agrees to a measure (eg, payment of a monetary reward, performance of community service, probationary period) and the proceedings against him or her are discontinued, subject to later prosecution. If, in the course of further proceedings, it turns out that the principal witness has violated duties, the proceedings against him or her may be reopened. If the proceedings against the accused third party have been concluded with legal effect, the public prosecutor's office will discontinue the investigation conducted against the principal witness as long as he or she has fulfilled his or her obligations (eg, payment of a monetary reward, performance of community service, probationary period).

As mentioned in question 4.6, there are provisions that incentivise self-reporting by offering immunity from prosecution for certain offences.

6.5 Can the existence of a compliance programme constitute a defence to charges of white collar crime?

Especially with regard to corporate liability (see question 2.1), the implementation of compliance systems plays an important role.

Thus, Section 3(3) of the Act on Corporate Liability also requires, with regard to the acts of an employee, that the act was substantially facilitated by the fact that decisionmakers disregarded the due care required under the circumstances. According to the wording of the law, this disregard can be expressed in particular by the fact that these decisionmakers failed to take essential technical, organisational or personnel measures to prevent the act. The legislature thus focuses on organisational culpability on the association. If the company implements a suitable compliance management system and cannot be accused of any other organisational culpability (eg, the selection of a completely unsuitable person as decisionmaker), the decisionmakers will not have acted in breach of their duty of care and will thus not be liable. However:

• the circumstances of the individual case must always be taken into account; and
• the implemented system must also comply with the legal requirements.

When establishing a system, close attention must therefore be paid to the structure and circumstances of the respective company; otherwise, the risk of liability is drastically increased.

In conclusion, the establishment of a suitable compliance management system is certainly suitable for avoiding liability. If the decisionmakers implement such a system, they do not act in an objectively negligent manner and there is no question of the association being held liable for the actions of its employees.

With regard to the actions of decisionmakers, the situation is different, as the association is always liable, irrespective of the establishment of a compliance management system. A defence with the argument that monitoring and selection obligations were completely fulfilled is therefore not possible.

In this context, Section 18 of the Act on Corporate Liability provides for the possibility that the public prosecutor's office may refrain from prosecuting the association or withdraw from prosecution under certain circumstances. The factors that will be considered in this regard include:

• the severity of the offence;
• the weight of the violation; and
• the conduct of the association after the offence.

The introduction of compliance measures after the offence constitutes such post-offense conduct and can lead to the discontinuation of the proceedings. However, even if the subsequent establishment of a compliance system does not lead to discontinuation, it represents a very significant mitigating factor with regard to the assessment of the fine.

In summary, therefore, both the precautionary and the retrospective establishment of a compliance management system can have a positive impact on the penalty imposed on an association.

6.6 What other defences are available to parties charged with white collar crime?

Mitigating factors that can reduce the threat of punishment include actions such as:

• voluntarily reporting a crime;
• cooperating with the authorities; and
• making amends for damages.

In general, the same grounds for justification and exculpation apply to defendants in white collar criminal cases as in general criminal cases. For example, the defendant may plead that he or she:

• did not commit an act with the required intent; or
• acted negligently.

In such cases, the defendant will be punished only if the law makes the negligent commission of the offence punishable, which applies to very few white collar crimes.

Depending on the circumstances of the individual case, the excuse of economic duress may also be considered grounds for exculpation, which means that the perpetrator cannot be subjectively accused of the act with which he or she is charged. The prerequisite for this situation is that:

• the perpetrator committed the act in order to avoid an imminent significant disadvantage for himself or herself or another person; and
• the act represented the only and least costly means of achieving this goal.

Another issue that is quite important in practice is so-called ‘active remorse', according to which an offender is exempt from punishment if he or she rectifies the damage caused to the victim as quickly as possible. Thus, both the entire damage rectified and the reparation must be made before the authorities learn of the culpability of the offender.

6.7 Can parties negotiate a pre-trial settlement through plea bargaining, settlement agreements or similar?

No, plea bargaining is prohibited in Austria.

6.8 What penalties can be imposed for white collar crime? How are these determined? Can non-exhaustive penalties be imposed for such violations (eg, exclusion from public procurement, exclusion from entitlement to public benefits or aid, disqualification from the practice of certain commercial activities, judicial winding up)?

Once the court is convinced of the defendant's guilt, it must determine the punishment it deems appropriate. Austrian criminal law provides for minimum and maximum penalties (for both fines and imprisonment). The court is not bound by precise guidelines in sentencing but must consider mitigating and aggravating circumstances. Mitigating circumstances might include:

• a remorseful confession;
• compensation for damages; or
• a mere attempt at committing the crime.

Aggravating circumstances might include:

• a previous offence; or
• the amount of damage caused.

If a fine is provided for by law, it can always be imposed (eg, embezzlement, ‘Untreue' – see question 3.1). If such a fine is not provided as a sanction, the Criminal Code nevertheless provides for the possibility of imposing fines in certain cases. This is regulated in Section 37 of the Criminal Code, which stipulates that a fine can always be imposed instead of imprisonment if:

• the threat of punishment for the offence does not exceed five years; and
• the actual sentence imposed would not exceed one year.

In addition, there must be no special preventive reasons – that is, a custodial sentence must not be required to deter the offender from committing further punishable acts.

Thus, the court may decide whether to impose a fine or conditional/unconditional imprisonment as a sanction according to the aforementioned considerations.

Another essential provision is found in Section 27 of the Criminal Code, which stipulates that in certain cases, a conviction also automatically leads to a loss of office. Thus, in the case of a public officer, a conviction leads to such loss of office in particular if:

• the custodial sentence imposed exceeds one year; or
• the unconditional part of a custodial sentence exceeds six months.

However, the court may, at its discretion, impose a conditional loss of office, so that a public officer does not lose his or her office even in cases of Section 27 of the Criminal Code.

6.9 What rights of appeal are available?

Both the defendant and the prosecution may appeal a guilty verdict and sentence, whereas only the public prosecutor may appeal an acquittal. If both parties appeal, the sentence can be changed in both directions (ie, both in favour of the defendant and against the defendant). If only the defendant appeals and the prosecution does not, the appellate court may not increase the sentence on appeal.

An appeal against a criminal conviction may have several grounds related to the verdict itself or of the proceedings for errors that must result in nullity. The question of guilt may be contested. It is also possible to challenge the sentencing and decisions on private law claims. In the case of judgments in which jurors have participated, it is not possible to contest the question of guilt.

7 Alternatives to prosecution

7.1 What alternatives to criminal prosecution are available where the authorities find evidence of white collar crime?

When it comes to alternatives to criminal prosecution, in particular the possibility of a diversionary settlement may be considered by the authorities.

The prerequisites are as follows:

• The facts of the case have been sufficiently clarified;
• The offence is not punishable by more than five years' imprisonment;
• The guilt of the defendant is not considered to be serious; and
• The offence has not resulted in the death of a human being, unless a relative of the defendant was killed through negligence and punishment does not appear to be necessary in view of the severe psychological stress this caused the defendant (this last prerequisite is by its very nature more or less meaningless when it comes to white collar crimes).

Furthermore, punishment of the defendant must not be deemed necessary:

• to deter him or her from committing crimes; or
• to counteract the commission of crimes by others.

Instead of a punishment, the prosecution (or later the court) may impose a diversionary measure, to which the defendant must consent. The diversionary measures available are:

• the payment of a sum of money;
• the performance of community service;
• the imposition of a probationary period, combined with probation and the performance of conditions; and
• reconciliation.

However, diversions for the offence of abuse of official authority are statutorily restricted.

In addition to this possibility of a ‘classic' diversion, leniency is available as a special form of diversion (see question 6.4).

7.2 What procedures are involved in concluding an investigation in this way?

For the prerequisites for a diversion, see question 7.1.

In preliminary proceedings, only the public prosecutor's office is responsible for the diversion of criminal proceedings. When the indictment is filed, this right is transferred to the competent court.

In preliminary proceedings, the prosecutor's office will make a proposal for diversion to the defendant together with the intended diversionary measure. The defendant may accept and fulfil this proposal, in which case the public prosecutor will withdraw from the prosecution. However, the defendant may also reject the proposal, in which case the proposal ceases and the prosecution may make a new proposal or continue the proceedings.

The prosecutor's office always withdraws from the prosecution temporarily. Only if the defendant fulfils the diversion measure (eg, payment of the fine, expiration of the probationary period) will it finally withdraw from the prosecution.

In the main proceedings, the court must hear the public prosecutor before informing the defendant that diversionary action is intended. The proceedings will then be discontinued by order. The public prosecutor's office may appeal this order within 14 days.

7.3 What factors will determine whether such alternatives to prosecution are to be offered to those who have been involved in white collar crime?

Since, in principle, diversion is possible for white collar crimes, the actual grant will always depend on:

• whether the public prosecutor's office or the court considers the guilt to be serious; and
• whether there are general or special preventive reasons that preclude a diversion.

The existence of these conditions is at the discretion of the public prosecutor's office or the court.

7.4 How common are these alternatives to prosecution? What, if anything, could lead to an increase in their use?

In practice, diversion is a popular instrument for terminating proceedings, especially in view of the costs involved and the simplification of proceedings. Since the introduction of diversion measures in 2000, the number of convictions of Austrian nationals has declined sharply (by around 50%).

The practical relevance of diversion is also reflected in the data. Thus, in 2021, there were about 211,000 case settlements in today, of which just under 48,000 (22.7%) were carried out by diversion. The majority of diversionary settlements – around 38,000 cases – were carried out by the public prosecutor's office, while the remainder were settled by the court in the main proceedings.

8 Private enforcement

8.1 Are private enforcement actions for white collar crims available in your jurisdiction? If so, where are they brought and what process do they follow?

There are certain offences for which victims must file charges themselves (eg, insult) and offences for which victims must authorise prosecution (eg, deception). However, the classic business crimes (eg, fraud, embezzlement) do not fall under these categories, but are rather offences to be prosecuted ex officio.

It is possible for victims to:

• join the criminal proceedings as a private party; and/or
• file a civil lawsuit.

Private parties can join the proceedings with their claims for damages, which can then be recognised by the defendant/awarded to the party by the court in the criminal proceedings; or the private party can be referred to the civil courts with these claims.

The defendant can appeal the decision on these claims to the next instance. Private parties can only appeal the referral of claims to civil law proceedings, but not the amount of the award.

8.2 What types of relief may be sought and what types of relief are most commonly awarded? How is the relief to be awarded determined?

The extent of the damage will be determined ex officio within the framework of the criminal proceedings, if this is feasible or easily possible.

8.3 Can the decision in a private enforcement action be appealed? If so, how?

Unlike the public prosecutor, who may also appeal in favour of the defendant, a private prosecutor may file a nullity appeal only to the detriment of the defendant. Otherwise, a private prosecutor has in principle the same rights as the public prosecutor.

9 Cyber issues

9.1 How do the white collar crime laws dovetail with cyber laws in your jurisdiction?

The Criminal Code recognises several offences that may constitute cybercrimes The most important of these are as follows:

• Data damage (Section 126a of the Criminal Code): This offense is committed by anyone who harms another person by altering, deleting, rendering unusable or suppressing data over which he or she has no or no sole right of disposal. The suppression of data occurs, for example, when so-called ‘ransomware' is used. This involves hiding files or preventing the perpetrator from accessing them by implementing password protection.
• Interference with the functioning of a computer system (Section 126b of the Criminal Code): This offence is committed by anyone who seriously disturbs the functioning of a computer system over which he or she has no control by entering data.
• Misuse of computer programs or login details (Section 126c of the Criminal Code): This offence is committed by anyone who produces, imports, sells, obtains or possesses a computer program, computer password, access code or comparable data that enables access to a computer system or a part thereof with the intent to commit certain criminal acts under computer criminal law (eg, Section 126a of the Criminal Code).
• Fraudulent misuse of data processing (Section 148a of the Criminal Code): This offence is committed by anyone who, with the intent to unlawfully enrich himself or herself or a third party, damages the assets of another person by influencing the results of computer-assisted data processing.

However, not every form of cybercrime can automatically be classified as white collar crime. Rather, the focus must be on:

• whether the actions constitute business-related behaviour and/or are driven by economic motives; and
• whether these actions are also based on corresponding information and communication technology.

9.2 What specific considerations, concerns and best practices should companies be aware of with regard to white collar crime prevention in the cyber sphere?

The rise of cybercrime means that it is vital to implement a corresponding compliance management system indispensable. Such a system helps to identify and analyse cybersecurity risks, which can subsequently be minimised through measures and control mechanisms.

In this context, it is also crucial to:

• identify potential data leaks and weak points in the defence against attacks; and
• improve the capacity to detect and respond to attacks as quickly as possible.

Setting up contingency plans in the event of an attack is also essential.

10 Trends and predictions

10.1 How would you describe the current white collar crime enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

Changes to criminal law on corruption are currently planned or have already been passed. These changes include:

• the creation of the offence of ‘mandate purchase';
• the tightening of penalties for corruption offences; and
• the relaxation of the requirements for revocation of an office in the event of a conviction.

In particular, the amendment aims to ensure that even persons who do not hold an office, but are only candidates for office, are still liable to prosecution if they accept a bribe. These changes are linked with the so-called ‘Ibiza scandal' (see question 9.2).

10.2 What high-profile white collar crime cases have arisen in your jurisdiction in recent times?

The most remarkable business crime case in Austria in recent years was the so-called ‘BUWOG scandal'. In December 2020, after a three-year trial, a former Austrian minister of finance – as one of several defendants – was sentenced to eight years in prison (appeal pending). The subject of the proceedings was, among other things, the accusation of corruption in connection with payments of millions of euros related to the privatisation of federal housing.

Another case that made headlines beyond national borders was the so-called ‘Ibiza scandal', which affected politicians of a later governing party – including the vice chancellor, who at the time was only a member of the National Council. In a covertly recorded video, these persons were filmed in a villa on Ibiza with the alleged niece of a Russian oligarch, towards whom they showed, among other things, a willingness to engage in corruption and to secretly take over party-independent media. The scandal led to the resignation of the concerned politicians from their political offices and inner-party functions and the end of the coalition. Investigations were conducted into:

• embezzlement;
• incitement to embezzlement; and
• taking advantage for influence.

In the end, the relevant persons bore no criminal consequences, as the preliminary proceedings were dropped.

Closely linked to the Ibiza scandal is the ‘casinos affair', which has been under investigation since mid-2019 and in which several house searches have already been carried out, some of them on high-ranking government officials. The affair concerns alleged agreements between politicians of the then-ruling parties and an Austrian gambling company to fill board positions. In return for the appointments, casino licences would be introduced and slot machine gambling – which had been banned in Vienna – would be reintroduced. The subject of the proceedings was primarily the accusation of embezzlement, bribery and corruption.

The most relevant current case concerns a former minister of family affairs, who was accused by the public prosecutor's office of:

• entering into restrictive/anti-competitive agreements with regard to the award of studies by the Ministry of Sport; and
• committing serious fraud.

Specifically, the former minister induced competitors to submit bogus bids in order to then be awarded the contract for the reimbursement of the studies herself. The court ultimately found her guilty of the charge of restrictive agreements but acquitted her of the serious fraud charge and sentenced her to a total of 15 months' conditional imprisonment. The verdict is not legally binding, as both the prosecution and the defence have appealed.

11 Tips and traps

11.1 What are your top tips for the smooth implementation of a robust compliance programme and what potential sticking points would you highlight?

The set of rules to be observed by companies is quite extensive and complex, and violations – or even the inadequate implementation of the regulations – can lead to severe penalties, with serious economic consequences for companies.

In this context, it is therefore essential to seek professional advice from experts who specialising in the implementation of comprehensive compliance management systems. This professional approach makes it possible to:

• address all company-specific details and peculiarities;
• identify and minimise the risks within the company; and
• establish appropriate risk management systems.

Regular training is another important component of a functioning compliance system.

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.