AUSTRIA Law and Practice Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
9. Assessment 9.1 Assessment of the Applicable Enforced Legislation
maximum penalties may indeed be even higher under certain circumstances. It would appear that, for a first offence, the maximum penalties have not yet been applied.
The evaluation of implementation and enforce - ment of the OECD Convention on Combating Bribery of Foreign Public Officials in Interna - tional Business Transactions is undertaken by way of peer reviews, and monitoring consists of several phases. Several reports have been pub - lished, the latest in 2017, by way of a follow-up to the report from 2012. In the 2012 report, the working group had recommended that Austria take appropriate steps within its legal system to ensure that nationality jurisdiction applies to Austrian companies that bribe abroad, including by using non-nationals as intermediaries. Furthermore, the working group issued some recommendations regarding the liability of legal persons for the bribery of foreign public officials, the investigation and prosecution of foreign brib - ery cases, and the liability of legal persons for the bribery of foreign public officials (for greater detail, see the OECD, Phase 3 Report on Imple - menting the OECD Anti-Bribery Convention in Austria, December 2012). The follow-up report from 2017 deals with the changes that have occurred in the intervening period (for instance, the decision of the Constitutional Court in rela - tion to the Austrian Corporate Liability Act, VfSlg 20.112/2016, and the introduction of the elec - tronic register of account information). However, according to the terms of a report pub - lished by the anti-corruption organisation Trans - parency International, Austria has taken only “initial steps” with regard to bribery abroad and has thus performed worse than in the last report. Within the framework of peer reviews, the GRECO examines observance and implemen -
8. Compliance Expectations 8.1 Compliance Obligations
There is no general legal obligation to set up a compliance programme in Austria. However, compliance requirements do apply in certain industries (eg, the financial services sector, capital market-oriented companies). The fail - ure to prevent bribery is not an offence in itself. According to Section 3 (3) clause 2 of the Austri - an Corporate Criminal Liability Act ( Verbandsver- antwortlichkeitsgesetz ) companies can be held liable if an employee commits a criminal offence and the company has failed to exercise reason - able care, in particular by failing to take essential technical, organisational or personnel measures to prevent such offences. Although this provision does not result in a general obligation to install a general compliance organisation, certain meas - ures to prevent criminal offences must be taken to protect the company. 8.2 Compliance Guidelines and Best Practices Effective compliance programmes are provided
by private suppliers (eg, law firms). 8.3 Compliance Monitorships
There is currently no possibility for enforcement bodies to seek a compliance monitor as part of company resolutions.
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