AUSTRIA Law and Practice Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
Acceptance of Gifts by Persons Holding a Position of Power (Section 153a of the Austrian Criminal Code) A person who has accepted a pecuniary advan - tage that is not merely insignificant in return for the exercise of the power granted to them to effect disposal in respect of third-party assets or of the power to place another person under a duty (such as a managing director of a company) and who does not, in violation of their duty, remit that pecuniary advantage shall be committing the offence of acceptance of gifts by a person holding a position of power (Section 153a of the Austrian Criminal Code). 2.3 Financial Record-Keeping Falsification of Balance Sheets (Sections 163a et seq of the Austrian Criminal Code) If, in the case of a legal entity or partnership, the executive bodies or executive officers shall present the balance sheets in an unreasonable manner in false or incomplete form, and if this has the capacity to cause a substantial loss, the executive bodies or executive officers – and pos - sibly also the auditors – shall be committing the offence of falsification of balance sheets (Sec - tions 163a et seq of the Austrian Criminal Code). This offence thus faces a number of barriers before punishable conduct may actually be deemed to have occurred. Firstly, the presen - tation must be unreasonable and, secondly, it must have the capacity to cause a substantial loss. The perpetrator’s intent must also encom - pass these aspects. 2.4 Public Officials Abuse of Official Authority (Section 302 of the Austrian Criminal Code) A civil servant who knowingly abuses their pow - er to execute official acts on behalf of a public body as the executive officer thereof, and who
thereby intends to cause prejudice to the rights of a third party, is committing an abuse of official authority. Such an offender may also consist of the state itself. There is a requirement that the perpetrator must consider the existence of an abuse of power to be certain. Misuse of Funding (Section 153b of the Austrian Criminal Code) Any person who uses funding granted improp - erly for purposes other than those for which it was granted shall render themselves liable to prosecution for misuse of funding (Section 153b of the Austrian Criminal Code). Agreements Restricting Competition in Procurement Procedures (Section 168b of the Austrian Criminal Code) If unlawful agreements are made, in the context of a procurement procedure, that are aimed at inducing the principal to accept a particular offer, this constitutes commission of the offence of an agreement restricting competition in a procure - ment procedure (Section 168b of the Austrian Criminal Code). 2.5 Intermediaries On 1 January 2013, the Austrian Lobbying and Interest Representation Transparency Act (Aus - trian Lobbying Act) came into force. As stated in the legislative materials, the aim of the Austrian Lobbying Act is “to create clear conditions for activities intended to influence the government decision-making processes”, applying three measures. All persons and com - panies that engage in lobbying must: See 2.1 Bribery . 2.6 Lobbyists
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