AUSTRIA Law and Practice Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
6.4 Protections Afforded to Whistle- Blowers The whistle-blower scheme set out in Section 2a (6) of the Austrian Public Prosecution Act ( Staatsanwaltschaftsgesetz ) makes it possible to ensure protection of a whistle-blower’s anonym - ity from a technical perspective. If the whistle-blower has rendered themself liable to prosecution, the possibility exists of exceptional mitigation or exemption from pun - ishment on the basis of the provision governing prosecution witnesses (see 6.5 Incentives for Whistle-Blowers ). Otherwise, with regard to whistle-blowers, there exist numerous unresolved issues in Austria in terms of civil law, labour law and criminal law. 6.5 Incentives Provided to Whistle- Blowers If whistle-blowers have rendered themselves liable to prosecution, the possibility exists that they may be exempted from any penalty as a prosecution witness, or the penalty applied may at least be subject to exceptional mitigation (see 6.4 Protection Afforded to Whistle-Blowers ).
Individuals and companies are not obliged to notify authorities of breaches of anti-bribery and anti-corruption rules. However, if, for instance, a managing director is aware of a planned or continuing criminal offence and takes no action, although they could do so, they may render themselves guilty of the same offence due to having failed to act as required (Section 2 of the Austrian Criminal Code). Intentionally protecting a perpetrator against criminal prosecution is also prohibited (preferential treatment pursuant Sec - tion 299 of the Austrian Criminal Code). 6.2 Voluntary Disclosure Incentives There are various incentives for voluntary self- disclosure of potential violations of anti-bribery and anti-corruption laws. As already pointed out in 4.5 Safe Harbour or Amnesty Programme , both an individual and a company have the opportunity, under certain conditions, to become a Prosecution Witness ( Kronzeuge ) as defined in Section 209a of the Austrian Code of Criminal Procedure, and thus avoid prosecution. The decisive factor for com - panies is that they are decision-makers who reveal their knowledge. Furthermore, Section 18 of the Austrian Corpo - rate Criminal Liability Act stipulates that the pub - lic prosecutor may, at their discretion, decide on whether to prosecute a company. This decision must be based on different factors, such as the conduct of the company after the offence. Finally, a voluntary self-disclosure can lead to a significant reduction of the penalty. 6.3 Self-Disclosure Procedures See 6.2 Voluntary Disclosure Incentive .
7. Enforcement Trends 7.1 Enforcement
In Austria, corruption is fought on several lev - els. Where a criminal offence is committed, the perpetrator can primarily expect a criminal trial and, subsequently, potentially a monetary fine or custodial sentence. Before a main trial takes place, there is a preliminary investigation, which often takes many years, and which is directed by the public prosecutor’s office.
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