AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
Cartel conduct as well as a criminal conviction stemming from cartel conduct (as discussed in 1.2 Regulatory/Enforcement Agencies and Penalties , for fraud or bid rigging) can lead to exclusion from future public tenders, pursuant to Section 78 (1) of the Austrian Federal Procure - ment Act. 5.4 Sanctions and Penalties in Criminal Proceedings The Cartel Act 2005 does not provide for the imposition of criminal sanctions for breach of competition laws. However, Section 168b of the Criminal Code makes bid rigging a criminal offence, punishable by a prison sentence of up to three years. Moreover, certain cartel behav - iour may also qualify as fraud, which is a criminal offence under Sections 146 et seq of the Crimi - nal Code and punishable with imprisonment for up to ten years. Depending on the facts of each case, cartel behaviour – or conduct accompany - ing cartel behaviour – may also qualify as other criminal offences. Under certain conditions, criminal sanctions could also be imposed on companies for “bid rigging” or other criminal infringements by employees pursuant to the Corporate Criminal Liability Act. There are no specific procedures for imposing criminal sanctions in the cartel context, as gen - eral criminal procedure is followed. See also 1.2 Regulatory/Enforcement Agencies and Penalties . 5.5 History of Criminal Sanctions See 1.2 Regulatory/Enforcement Agencies and Penalties and 5.4 Sanctions and Penalties in Criminal Proceedings . Except for cases of bid rigging, criminal sanctions play a subordinated
role. Most recent statistics are available for 2021–22, during which defendants were found guilty of bid rigging in eight cases. No data is available on the length/amount of actual penal - ties. The authors are not aware of cases in which Austria extradited citizens for cartel or related offences or any citizens agreeing to serve jail time in another jurisdiction as part of a plea bar - gain. 5.6 Relevance of Effective Compliance Programmes In general, a compliance programme does not, in and of itself, ensure a reduction in sanctions for participating in cartel conduct (Supreme Court, 27 June 2013, 16 Ok 2/13). However, more recently, the FCA has begun to draw up internal guidelines, according to which, having an effective compliance programme in place would be recognised as a mitigating factor for lowering a fine (understood to be by no more than a single-digit percentage). Factors that are expected to be considered in determining whether an effective compliance regime is in place include: • a top-down approach; • broad distribution within the organisation; • solutions tailored to the organisation; • training and education; • efficiency (including the ability to withstand stress tests such as mock dawn raids); • quality of measures taken; • documentation of measures taken; and • regular review and updates. 5.7 Mandatory Consumer Redress Sanctions in cartel proceedings for violation of competition laws, or in a criminal proceed -
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