AUSTRIA Law and Practice Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
2. Bribery and Corruption Elements 2.1 Bribery Classification and Constituent Elements A “unitary perpetrator” system applies in Austria. Thus, the direct perpetrator is punished under the same offence (and severity of sentence) as a person who incites the direct perpetrator or contributes to the offence. Accordingly, for instance, it is not only a civil servant who can commit an abuse of official authority (as could be presumed according to the wording of the law, as further described below), but also any person who incites a civil servant to commit an abuse of authority; by the mere attempt at such incitement, that person is punishable, as well as any person who makes any other contribution to an abuse of official authority on the part of a civil servant. In principle, a perpetrator is deemed to be act - ing with intent once they seriously consider the realisation of elements constituting a criminal offence to be possible and accept the situation. Partly, however, there is a requirement that the perpetrator does not consider a particular cir - cumstance or outcome to be merely possible, but deems the existence or occurrence thereof to be certain. Furthermore, as a general rule, it is not only a completed offence, but a mere attempt at an offence, that is punishable. The Austrian Criminal Code makes a distinction between civil servants ( Beamte ), public officials ( Amtsträger ) and arbitrators ( Schiedsrichter ). Since September 2023, also, future public offi - cials are included. Civil servants are persons who are entrusted in any manner whatsoever with administrative duties. The concept of a “public official” goes further. It covers all persons
as new offences. For example, for all corrup - tion offences in the public sector (Sections 304 to 307b Austrian Criminal Code), the maximum penalty is raised from ten to 15 years if the val - ue of the advantage exceeds EUR300,000. The maximum possible fine for associations under the Corporate Liability Act will be tripled. The maximum fine for associations will therefore be EUR5.4 million. Furthermore, a new offence, “purchase of mandate” (Section 265a) was added to the Austrian Criminal Code. Moreover, the offences of Section 304 and Section 306 of the Austrian Criminal Code used to be only applicable to public officials (“Amtsträger”); from now on, these offences also include future public officials (candidates of a public official, Section 74 (1) clause 4d Austrian Criminal Code). As part of the Fraud Prevention Act 2024 ( Betrugsbekämpfungsgesetz 024, Part 1), the Financial Crimes Act ( Finanzstrafgesetz ) was amended, which resulted in the introduction of a new financial offence (Section 51b). The leg - islator sought to prevent a pattern of fraud that is increasingly occurring in practice by tighten - ing criminal liability in connection with fictitious companies and fictitious invoices. The amend - ment brought criminal liability forward to the preparatory stage, as, previously, the financial criminal authorities were often unable to con - duct effective investigations because the per - sons responsible were no longer reachable. The financial offence that has now been introduced can be penalised with a comparatively high fine of up to EUR100,000.
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