AUSTRIA Law and Practice Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
who undertake legislative, administrative or judi - cial duties for any public body or another state or for an international organisation, whether as executive officer or employee, as well as those who are authorised to execute official acts on behalf of a public body. In addition, public offi - cials are also deemed to be persons who act as executive officers or employees of a govern - ment-related organisation. The decision-makers of an arbitration court (arbitrators) can also come under consideration as perpetrators of corrup - tion offences. Bribery With regard to “corruptibility” (Section 304 of the Austrian Criminal Code), a public official or arbi - trator renders themselves liable to prosecution if they demand, accept, or accept the promise of an advantage for themselves or for a third party, in return for the exercise of, or the refraining from the exercise of, an official act in violation of their duties. The official act to be performed must in any event constitute a violation of duty. If the public official or arbitrator fulfils all their duties in the correct manner, this constituent element of an offence cannot be fulfilled (however, there may be another offence – see further below). Experts appointed in proceedings also render themselves liable to prosecution under this pro - vision if they accept an advantage in return for preparing a false expert’s report. In respect of these constituent elements, there exists no mar - ginality threshold. A person who offers, promises or grants a pub - lic official, arbitrator or expert an advantage for themselves, or a third party, for the exercise of, or the refraining from the exercise of, an offi - cial act in violation of duties shall be commit - ting bribery (Section 307 of the Austrian Criminal Code).
In respect of these two offences, no marginality threshold exists. 2.2 Influence-Peddling Acceptance of an Advantage (Section 305 of the Austrian Criminal Code) and Offering an Advantage (Section 307a of the Austrian Criminal Code) A public official or arbitrator who demands, accepts, or accepts the promise of an advan - tage for themselves, or a third party for the due exercise of, or for refraining from the due exer - cise of, an official act shall be committing the offence of acceptance of an advantage (Section 305 of the Austrian Criminal Code). The differ - ence between this and corruptibility (Section 304 of the Austrian Criminal Code) lies in the fact that the official act is in principle in compliance with the law and not in violation of duties. If the public official or arbitrator is not proactive – ie, they do not demand an advantage, but merely accept an advantage or accept the promise of an advantage – then acceptance or acceptance of a corresponding promise is only punishable if the advantage in question is undue. Advantages not deemed undue are, for instance, those for which acceptance is lawful, as well as minor-value tokens of appreciation which are usual in the locality or region – this means, gen - erally, tokens of appreciation which have a maxi - mum value of EUR100, provided that the public official or arbitrator does not regularly accept promises of such tokens or does not regularly accept those tokens. A person who offers, promises or grants a pub - lic official or arbitrator an undue advantage for themself, or for a third party in return for the due exercise of, or for refraining from the due exer - cise of, an official act, renders themself liable to prosecution for the offence of offering an
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