AUSTRIA Law and Practice Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
1.4 Recent Key Amendments to National Legislation Bitcoin and other virtual currencies have estab - lished themselves as a means of exchange on the market. Among other things, this raises questions from a regulatory perspective. Quite recently, the EU Directive 2019/713 (on combat - ing fraud and counterfeiting of non-cash means of payment) and replacing Council Framework Decision 2001/413/JHA (Directive 2019/713) required an amendment to the Austrian Crimi - nal Code. The required amendments to the Austrian Crim - inal Code entered into force on 11 December 2021 (Federal Law Gazette I 2021/201), in par - ticular amending the definition of the term “non- cash means of payment” within the meaning of Section 74 (1) clause 10 of the Austrian Criminal Code. Before the amendment only physical non-cash means of payment were covered by the defi - nition. The EU Directive has the explicit aim of covering incorporeal means of payment and “computer-related fraud”. The altered definition is in line with Article 2 lit a of the Directive, which states, “non-cash payment instrument: non-cor - poreal or corporal devices, objects or records or a combination thereof, other than legal tender, and which alone or in conjunction with a proce - dure or a set of procedures, enables the holder or user to transfer money or monetary value, including through digital means of exchange”. The amendment eliminated the requirement that the issuer must be identifiable. Furthermore, the requirement for the cash-representative func - tion, or the function of issuing cash, no longer applies.
Virtual currencies are not means of payment per se but are considered as such only if they are accepted by third parties. This does not result from the intended use of virtual currencies by users, but from the legal definition in the Finan - cial-Market-Money-Laundering Act ( Finanzmarkt Geldwäschegesetz ). The most recent federal law amending the Aus - trian Criminal Code and the Austrian Payment Services Act 2018 to implement the Directive (EU) 2019/713 (on combating fraud and coun - terfeiting involving non-cash means of payment) mainly includes the following measures: • expansion of the definition of non-cash means of payment in Section 74 (1) clause 10 of the Austrian Criminal Code to include non-cash means of payment, including virtual currencies (see above); • expanding the offences in: (a) Section 148a Austrian Criminal Code (fraudulent misuse of data processing); (b) Section 241b Austrian Criminal Code (ac - cepting, transferring or possessing false or falsified non-cash means of payment); (c) Section 241c Austrian Criminal Code (preparing to counterfeit non-cash means of payment); and (d) Section 241f Austrian Criminal Code (ac - cepting, transferring or possessing alien - ated non-cash means of payment); • increasing the penalties in Section 126c of the Austrian Criminal Code (misuse of com - puter programs or access data), Section 148a of the Austrian Criminal Code, Section 241c of the Austrian Criminal Code, Section 241h of the Austrian Criminal Code (spying on data of non-cash means of payment); and • implementation of commission of the crime within the framework of a criminal organisa - tion in Section 147 Austrian Criminal Code
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