New Anti-Bribery Regime in Austria

→ Heidemarie Paulitsch

From 1 January 2013, a new anti-bribery regime will be effective in Austria. The amendments to the Austrian Criminal Penal Code broaden and intensify the prosecution of corrupt behaviour and strengthen Austria’s fight against bribery. This article outlines the updated approach to combatting bribery and bribery-related offences in the amended Korruptionsstrafrechtsänderungsgesetz 2012 (Federal Gazette No I ⁶¹⁄₂₀₁₂).

Extension of “public official”

The def­i­n­i­tion of pub­lic offi­cial has been extend­ed. The new regime also cov­ers all employ­ees and offi­cers of state-owned enter­pris­es and enter­pris­es (par­tial­ly) direct­ly or indi­rect­ly con­trolled by a region­al admin­is­tra­tive body. Thus, any indi­vid­ual who 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 cap­i­tal is a “pub­lic offi­cial”.

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 him­self or a third par­ty for the con­duct or omis­sion of func­tions required by his office. It is also a crime to pro­vide, promise, or offer to a court expert (Sachver­ständi­ger) an advan­tage for him or a third par­ty for an incor­rect expert find­ing. An “advan­tage” is any per­for­mance (mate­r­i­al or imma­te­r­i­al) that puts the bribed par­ty in a bet­ter posi­tion (him­self or a third par­ty) and to which he does not have a legal claim.

The crime is pun­ish­able by up to five years in prison.

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 a legal duty or omis­sion to per­form such will be pun­ished. Ben­e­fits are not undue:

1. if the accep­tance of the advan­tages is legal­ly per­mit­ted (1^st alter­na­tive) or they are grant­ed in the con­text of events, the par­tic­i­pa­tion in which con­sti­tutes an inter­est that is func­tion­al­ly or fac­tu­al­ly jus­ti­fied (2^nd alter­na­tive);
2. for advan­tages for char­i­ta­ble pur­pos­es (para 35, Fed­er­al Fis­cal Code) upon the use of which the pub­lic offi­cial does not exert any dom­i­nat­ing influ­ence; and
3. for want of per­mis­sion norms in the sense of local­ly cus­tom­ary acts of small val­ue, lest they are per­pe­trat­ed on a com­mer­cial basis.

The crime is pun­ish­able by up to five year in prison.

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 to inten­tion­al­ly influ­ence his per­for­mance of, or omis­sion to per­form, a legal duty will be pun­ished.

The crime is pun­ish­able by up to five years in with a prison.

Prohibited intervention

It is a crime if a per­son demands, accepts, or allows him­self to be promised an advan­tage for him­self or a third par­ty to undu­ly influ­ence the deci­sion of a pub­lic offi­cial or arbi­tra­tion court judge. The crime is pun­ish­able by up to two years in prison.

Sim­i­lar pun­ish­ment will be imposed on who­ev­er pro­vides, promis­es, or offers an advan­tage to a per­son who exer­cis­es an undue influ­ence over deci­sions by a pub­lic offi­cial or arbi­tra­tion court judge. The crime is pun­ish­able by up to five years in prison.

Influ­ence of a pub­lic offi­cial or arbi­tra­tion court judge is “undue” if: (i) it aims at an unlaw­ful per­for­mance or omis­sion to per­form by a pub­lic offi­cial that breach­es of his 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 to be promised an advan­tage for him­self or for a third par­ty to per­form or fail to per­form an act in breach of his duties in the nor­mal course of busi­ness.
Sim­i­lar pun­ish­ment will 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 nor­mal course of busi­ness for the unlaw­ful per­for­mance of or fail­ure to act in breach of the employ­ee’s or agen­t’s duties.

The crime is pun­ish­able by up to five years in prison.

An “advantage” is any performance that puts the bribed party in a better position and to which he does not have a legal claim.