1. WHITE COLLAR-CRIME – Austria as an example for the civil law perspective 1 Albania Austria Bosnia and Herzegovina Bulgaria Croatia Czech Republic Hungary Poland Romania Serbia Slovak Republic Slovenia Ukraine Dr. Holger Bielesz, LLM

2. General point of departure Recent Austrian anti-corruption law legislation acted under the international trend of fighting corruption with significantly greater determination than earlier. 2

3. International agreements setting new standards to fight corruption and influencing Austrian anti-corruption legislation OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997) –The OECD – European Organisation for Economic Co- operation – particularly refers to the distortions of free competition in the international business caused by corruption. Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (1997) 3 INTERNATIONAL AGREEMENTS

4. Criminal Law Convention on Corruption dated 27.1.1999 of the Council of Europe Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector –Involves not only liability of natural person, but also the legal person –Led to corporate criminal liability laws United Nations Convention against Corruption adopted by UN general assembly on 31 October 2003 –Prevention –Criminalization –International Co-operation –Asset recovery 4 INTERNATIONAL AGREEMENTS

5. Amended Austrian anti-corruption law 2008 In the beginning of 2008 the Austrian legislator introduced fundamental changes to the existing legal framework in the area of anti-corruption law. The sanctions of corrupt behavior were made more severe than earlier and the new law addressed corruption within the private sector for the first time. The scope of criminal conduct was significantly enlarged, because presents and invitations of public officials could be potentially unlawful, if they could be seen as an attempt to keep the official favorable for future needs. 5 AUSTRIAN LAW

6. Three changes are worth noting: The new law introduced bribery of private persons for the first time. The new law also sanctioned benefits to public officials which are not connected to a specific official act, but rather are granted with a general view to the future execution of official duties. The scope of public officials was enlarged and the sanctions became more severe. 6 AUSTRIAN LAW

7. Discussion about the amended Austrian law The new law faced severe criticism in particular from the private business sector because it was imprecise, going beyond what is necessary to deter corruption and not aiming at the necessary important points. In particular business community was afraid of the prohibition to confer benefits, even if they are unrelated to a certain case or transaction. The typical example put forward was that companies risked becoming criminally liable for inviting persons assuming public functions to the annual concerts in Salzburg (Salzburger Festspiele). In other places, the amended law introduced concepts, which are still good law in Austria. E.g. the law introduced more severe penalties, if the bribed person shall take an unlawful action or a lawful action (but still in order to favor the bribing person or body). It is the perception of the Austrian legislator that corruption in the public sector requires more severe punishment than corruption in the private sector (except in cases like fraud or breach of trust). 7 AUSTRIAN LAW

8. Re-amendment of the Austrian anti- corruption law in 2009 The declared purpose of the law was to introduce clarifications. E.g. the prohibition to confer benefits unrelated to a certain case or project was strongly limited in its scope of application – people could again make presents to public officials, as long as there is no direct context with a certain expected official act.  This amendment of the Austrian anti-corruption law was received with mixed reactions. One part said that the new law introduced the necessary clarifications. Others said that wide parts of corrupt conduct are no more covered. Views were very controversial. 8 AMENDEMENT 2009

9. Re-amendment of the Austrian anti- corruption law in 2012 One of the most important changes brought about by this latest corruption regime is that Austrian citizens committing bribery in any other place of the world, become liable under Austrian criminal law, no matter whether the bribery constitutes a crime in the country, where the bribery is committed. This is a remarkable example that Austrian anti-corruption law got extra-territorial application, even though it does not go as far as, e.g. the UK Bribery Act. The criminal law provisions were made more severe. 9 AMENDEMENT 2012

10. In particular, it was again outlawed to grant favors which are not connected to a specific official act but rather are granted with a general view to the future execution of official duties. The legislator tried to address the criticism of the earlier laws and insert clarifications. Ministry of Justice came up with extensive documentation to clarify the meaning of the new law.  Since then a certain stage of satisfaction with the existing Austrian legal regime has been reached. The law now remains to be applied. 10 AMENDEMENT 2012

11. Influence of international standards Austrian Corporate Criminal Liability Act – in force since 2006. UK Bribery Act:  Six Principles for Bribery Prevention:  Risk assessment  Top-level commitment  Due Diligence  Clear, practical and accessible policies and procedures  Effective implementation  Monitoring and review 11 INTERNATIONAL DEVELOPMENT

12. Main anti-corruption provisions of the Austrian Criminal Code (StGB) The Legislator distinguishes between criminal offences in relation to private sector corruption and public sector corruption. The Austrian Criminal Code does not provide a definition about the term „corruption“, but due to the austrian doctrine „corruption“ is generally defined as follows: „Corruption is the misuse of entrusted power for private gain.“ Criminal offences related to corruption:  Private Sector: Acting deliberately in breach of legal authorisation in order to cause pecuniary disadvantage (§ 153 StGB – Untreue) 12 KEY PROVISIONS

13. Acceptance of advantages by authorities while acting in their power of representation (§ 153a StGB – Geschenkannahme durch Machthaber) Unfair Competition (for instance „price-gouging“) constitutes a criminal offense (§ 168b StGB – Wettbewerbsbeschränkende Absprachen bei Vergabeverfahren). In general, accepting of advantages "for" acts/omission which are in violation of the duty of the person accepting such advantage (in short: wrongful acts/omissions) are prohibited (§309 StGB – Geschenkannahme und Bestechung von Bediensteten oder Beauftragten) 13 KEY PROVISIONS

14.  Public Sector: Offering or acceptance of advantages (or of a promise to provide for an advantage) "for" wrongful acts are generally prohibited (§ 304 StGB - Bestechlichkeit) Requesting an advantage "for" dutiful acts is prohibited; so is its acceptance, if the advantage is not appropriate (§ 305 StGB – Vorteilsannahme) Similar provisions apply for active actions (§ 307 StGB – Bestechung, § 307a StGB - Vorteilszuwendung) Benefits provided in an attempt to influence the government official (§ 306 StGB – Vorbereitung der Bestechlichkeit oder der Vorteilsannahme – for passive action and § 307b StGB – Vorbereitung der Bestechung – for active offering, promising or granting a not appropriate advantage) 14 KEY PROVISIONS

15. Conclusion in practice Courts take this seriously. Severe convictions in recent times (see “Cases”). Effectiveness of law enforcement has been improved – capacity has been increased and a new anti-corruption public prosecution office has taken up its work in September 2009. 15 PRACTICAL APPLICATION

16. Cases in Austria Popular case: conviction of former Austrian minister and Member of the European Parliament for accepting cash for a legislative project in the interest of a private party – the former minister went into a trap made by British journalists (4 years of imprisonment, not final). Several cases, some still pending, dealing with illegal financing of political parties by an Austrian telecommunication company. Conviction of politicians for taking cash in order to procure citizenships (Uwe Scheuch). Pending proceedings against another former minister for irregularities during the privatization process of State-owned real estate assets. 16 PRACTICAL APPLICATION

17. References 1/3 Boorman, OECD Anti-Bribery Convention, 2001. Bundesamt zur Korruptionsprävention und Korruptionsbekämpfung, Jahresberichte aus 2010 – 2013, http://www.bak.gv.at/cms/BAK_dt/service/downloads/start.aspx, 05.03.2015. http://www.bak.gv.at/cms/BAK_dt/service/downloads/start.aspx European Commission, Austria to the EU Anti-Corruption Report, 2014, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-crime- and-human-trafficking/corruption/anti-corruption-report/index_en.htm - 05.03.2015. http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-crime- and-human-trafficking/corruption/anti-corruption-report/index_en.htm Liebenwein/Dörfler-Langsteger, Das Korruptionsstrafrechtsänderungsgesetz 2012, RdM-ÖG 2013/6. Loughman/Sibery, Bribery and Corruption, 2012. Medigovic, Das neue Korruptionsstrafrecht, RdW 2010, 263. Pieth/Low/Bonucci, The OECD Convention on Bribery, 2010. Reindl-Krauskopf, Korruptionsstrafrecht in Österreich – Überzogen oder zahnlos?, JSt 2009, 49. 17

18. References 2/3 Schnitzer, Leitfaden der UNO zur Korruptions-Prävention, Wirtschaftsblatt 2013. Schuschnigg, Das österreichische Korruptionsstrafrecht im Lichte der Strafgesetznovelle 2009, Wirtschaftskammer Österreich. Shentov/Faion/Yordanova, Countering Police Corruption: European Perspectives, 2013. Stuefer, Ein Überblick über das neue Korruptionsstrafrecht, JSt 2012, 148. International Monetary Fund, Austria: Detailed Assessment Report on Anti-Money Laundering and Combating the Financing of Terrorism, 2009. Transparency International, http://www.ti-austria.at/korruption/was-ist-korruption.html, 05.03.2015.http://www.ti-austria.at/korruption/was-ist-korruption.html http://europa.eu/legislation_summaries/fight_against_fraud/fight_against_corruption/l330 27_en.htmhttp://europa.eu/legislation_summaries/fight_against_fraud/fight_against_corruption/l330 27_en.htm - 05.03.2015. http://www.unodc.org/unodc/en/treaties/CAC/http://www.unodc.org/unodc/en/treaties/CAC/ - 05.03.2015. 18

19. References 3/3 Legislative Materials Korruptionsstrafrechtsänderungsgesetz 2012, BGBl No. 61/2012. Bundesgesetz über die Einrichtung und Organisation des Bundesamtes zur Korruptionsprävention und Korruptionsbekämpfung, BGBl No. 72/2009. Strafrechtsänderungsgesetz 2008, BGBl No. 109/2007. Übereinkommen der Vereinten Nationen gegen Korruption, BGBl No. 47/2006. 19

20. 20 CONTACT Thank you for your attention!