The key piece of legislation as regards Austrian anti-corruption law is the Austrian Penal Code (“Strafgesetzbuch”, BGBl 1974/60) as amended. The Austrian Penal Code distinguishes between: 

• active and passive corruption; and 
• corruption in the official and private sector.

In the following we will outline the text of the most important legal provisions of Austrian anti-corruption law:

Active Corruption 

1. Active Official Corruption

Active bribery-Section 307 Penal Code

• Any person who offers, promises, or provides a benefit to an office bearer, adjudicator, or to a third person in return for the unlawful execution or omission of official duties by the office bearer or adjudicator is liable to imprisonment for up to three years. The same penalty applies to any person who offers, promises, or provides a benefit to an expert witness (§ 304 para. 1) in return for the presentation of false results or false opinion.
• Any person who commits the offense in relation to benefits exceeding a value of EUR 3,000 is liable to imprisonment for six months to five years; any person who commits the offense in relation to benefits exceeding a value of EUR 50,000 is liable to imprisonment for one to 10 years.

Giving undue advantages-Section 307a Penal Code

• Any person who offers, promises, or provides an undue advantage (§ 305 para. 4) to an office bearer, adjudicator, or to a third person in return for the lawful execution or omission of official duties by the office bearer or adjudicator is liable to imprisonment for up to two years.
• Any person who commits the offense in relation to advantages exceeding a value of EUR 3,000 is liable to imprisonment for up to three years; any person who commits the offense in relation to advantages exceeding a value of EUR 50,000 is liable to imprisonment for six months to five years.

Giving undue advantages for the purpose of interference-Section 307b Penal Code

• Any person who, except in cases under §§ 307 and 307a offers, promises, or provides an undue advantage (§ 305 para. 4) to an office bearer, adjudicator, or to a third person intending to influence the office bearer or adjudicator in his or her official role is liable to imprisonment for up to two years.
• Any person who commits the offense in relation to advantages exceeding a value of EUR three thousand is liable to imprisonment for up to three years; any person who commits the offense in relation to advantages exceeding a value of EUR 50 thousand is liable to imprisonment for six months to five years.

Unlawful intervention (active)-Section 308 para. 2 Penal Code

[…]

• The same penalty applies to any person who offers, promises, or provides a benefit to another so that the other person exercises undue influence on the decision-making of an office bearer or adjudicator.
• Any person who commits the offense in relation to benefits exceeding a value of EUR 3,000 is liable to imprisonment for up to three years. Any person who commits the offense in relation to benefits exceeding a value of EUR 50,000 is liable to imprisonment for six months to five years.
• Exercising influence on the decision-making of an office bearer or adjudicator is undue if it is aimed at the unlawful execution or omission of official duties or if it is associated with the offer, promise, or provision of undue advantages (§ 305 para. 4).
• A person is not liable under paras. 1 to 4 if the offense is punishable with a higher penalty under another provision.

2. Active Private Corruption

Acceptance of gifts and bribery of employees and representatives (active) – Section 309 para. 2 Penal Code
[…]

• The same penalty applies to any person who offers, promises, or provides a benefit to an employee or representative of a company in return for the execution or omission of a legal act in breach of that person’s duties in the course of the business transaction.    
• Any person who commits the offense in relation to benefits exceeding a value of EUR 3,000 is liable to imprisonment for up to three years; any person who commits the offense in relation to benefits exceeding a value of EUR 50,000 is liable to imprisonment for six months to five years.

Passive Corruption

1. Passive Official Corruption

Passive Bribery-Section 304 Penal Code

• Any person being an office bearer or adjudicator who demands accepts, or accepts the promise of a benefit for himself, herself, or a third person in return for the unlawful execution or omission of official duties is liable to imprisonment for up to three years. The same penalty applies to any person who, being an expert witness commissioned by a court or another authority in relation to particular proceedings demands, accepts, or accepts the promise of a benefit in return for presenting false results or a false opinion.
• Any person who commits the offense in relation to benefits exceeding a value of EUR three thousand is liable to imprisonment for six months to five years; any person who commits the offense in relation to benefits exceeding a value of EUR 50 thousand is liable to imprisonment for one to 10 years.

Accepting undue advantages-Section 305 Penal Code

• Any person being an office bearer or adjudicator who demands a benefit for himself, herself, or a third person, accepts or accepts the promise of an undue advantage (para. 4) in return for the lawful execution or omission of official duties is liable to imprisonment for up to two years.
• (repealed, BGBl. I No. 61/2012)
• Any person who commits the offense in relation to benefits exceeding a value of factual interest to participate,

Benefits for charitable causes (§ 35 Federal Tax Code [Bundesabgabenordnung (BAO)]) if the office bearer or adjudicator has no particular influence on their use, as well as EUR three thousand, is liable to imprisonment for up to three years; any person who commits the offense in relation to benefits exceeding a value of EUR 50 thousand is liable to imprisonment for six months to five years.

Undue advantages do not include:

• benefits that can lawfully be accepted or that are provided in the context of events in which there is an official; or
• absent any provisions permitting the advantage within the meaning of sub-para. 1, local or customary courtesies of small value, unless the offense is com-mitted commercially.

Accepting of benefits for the purpose of interference-Section 306 Penal Code

• Any person being an office bearer or adjudicator who, except in cases under §§ 304 or 305, demands a benefit for himself, herself, or for a third person, accepts or accepts the promise of an undue advantage (§ 305 para. 4) intending that his or her role as an office bearer be influenced is liable to imprisonment for up to two years.
• Any person who commits the offense in relation to benefits or advantages exceeding a value of EUR three thousand is liable to imprisonment for up to three years; any person who commits the offense in relation to benefits or advantages exceeding a value of EUR 50 thousand is liable to imprisonment for six months to five years.
• A person is not liable under para. 1 if the person merely accepts or accepts the promise of a minor benefit, unless the offense is committed commercially.

Unlawful intervention (passive)-Section 308 para. 1 Penal Code

• Any person who demands accepts, or accepts the promise of a benefit for himself, herself, or for a third person in return for exercising undue influence on the decision-making of an office bearer or adjudicator is liable to imprisonment for up to two years.

[…]

• Any person who commits the offense in relation to benefits exceeding a value of EUR three thousand is liable to imprisonment for up to three years. Any person who commits the offense in relation to benefits exceeding a value of EUR 50 thousand is liable to imprisonment for six months to five years.
• Exercising influence on the decision-making of an office bearer or adjudicator is undue if it is aimed at the unlawful execution or omission of official duties or if it is associated with the offer, promise, or provision of undue advantages (§ 305 para. 4).
• A person is not liable under paras. one to four if the offense is punishable with a higher penalty under another provision.

II.    Passive Private Corruption

Acceptance of gifts and bribery of employees and representatives (passive)-Section 309 para. 1 Penal Code

• Any person being an employee or representative of a company who, in the course of business transactions, demands, accepts, or accepts the promise of an advantage for himself, herself, or for a third person in return for the execution or omission of a legal act in breach of the person’s duties is liable to imprisonment for up to two years. 
   

The existing anti-corruption law has been repeatedly amended and supplemented over the last 10 years:

• Penal Law Amendment Act 2008:
  • The main change occurred in 2008 and consisted of the introduction of criminal offenses that corruption in the private sector was made a criminal offense. Prior to 2008, only bribery in the public sector had been punishable. Furthermore, arbitrators were included as potential targets of bribery.
  • The legislator also added a new provision against advantages granted to public officials which were not connected to a specific official act.
• The last (noteworthy) amendment took place in 2012 and the current legislative status (as described above, 1) was adopted.

Yes, it is prohibited to bribe a domestic government official as well as it is prohibited for government officials to accept such bribes. The Penal Code provides for several criminal offenses in this context (see in detail above in the answer to "What is the key anti-bribery and corruption legislation in your jurisdiction?"):

• Active bribery

According to Section 307, it is punishable to offer, promise, or provide a benefit to an office bearer, adjudicator, or to a third person in return for the unlawful execution or omission of official duties by the office bearer or adjudicator.

• Granting of undue advantages

According to Section 307a, it is punishable to offer, promise, or provide an undue advantage to an office bearer, adjudicator, or to a third person in return for the lawful execution or omission of official duties by the office bearer or adjudicator.

• Granting of undue advantages for the purpose of interference

Section 307b makes it a criminal offense to offer, promise, or provide an undue advantage to an office bearer, adjudicator, or to a third person intending to influence the office bearer or adjudicator in his or her official role.

Yes, a bribe payment to foreign government officials is covered by the Austrian anti-bribery legislation, since the term “office bearer” according to the Austrian Penal Code does not only cover Austrian government officials, but also foreign government officials. 

Austrian anti-corruption law will apply:

• when the offense was committed in Austria, regardless of the place where the success occurs (e.g. somebody transfers money from Austria to a foreign public official outside of Austria; Austrian anti-bribery laws apply, since the criminal act (bribe payment) was committed in Austria); or
• when the offender was an Austrian citizen at the time of the offense (regardless of the place of the offense or the nationality of the bribed official).

Yes, it is prohibited to request or accept a bribe in various cases. The Penal Code provides for several criminal offenses in this context:

• Passive bribery

According to Section 304, an office bearer or adjudicator is punishable if he/she demands, accepts or accepts the promise of a benefit for himself, herself or a third person in return for the unlawful execution or omission of official duties.

• Accepting undue advantages

According to Section 305, an office bearer or adjudicator is punishable if he/she demands a benefit for himself, herself or a third person, accepts or accepts the promise of an undue advantage in return for the lawful execution or omission of official duties.

• Acceptance of benefits for the purpose of interference

According to Section 306, an office bearer or adjudicator is punishable if he/she demands a benefit for himself, herself or a third person, accepts or accepts the promise of an undue advantage intending that his or her role as an office bearer be influenced.

• Unlawful intervention

According to Section 308, any person is punishable, who demands, accepts or accepts the promise of a benefit for himself, herself or a third person in return for exercising undue influence on the decision-making of an office bearer or adjudicator.

• Acceptance of gifts and bribery of employees and representatives

According to Section 309, of the Penal Code an employee or representative of a company is punishable if he/she in the course of business transactions, demands, accepts, or accepts the promise of an advantage for himself, herself, or for a third person in return for the execution or omission of a legal act in breach of his/her duties.
 

Active Corruption

The criminal offenses regarding active corruption as described above may be committed by anybody. 

Passive Corruption

The criminal offenses of passive corruption as described above may be committed by:

• any person acting on behalf of:
  • the Federal Government; 
  • a State Government;
  • municipal association;
  • municipality;
  • another legal person governed by public law;
  • a foreign state; or
  • an international organization as their organ or employee performs administrative, legislative or judicial tasks.
• an expert witness commissioned by a court or another authority;
• any person who is in any other way authorized to exercise official functions in the execution of laws on behalf of any of the aforementioned entities;
• any person who acts as an organ or employee of a corporation in which one or more domestic or foreign territorial authorities have, directly or indirectly, a 50 percent stake in the share capital, capital stock or equity, and that is run by the territorial authority alone or together with other territorial authorities or that is factually controlled by the territorial authority through financial or other business or organizational mechanisms, but in any case any corporation whose business is subject to review by the audit office, institutions similar to the audit office established by the States, or comparable international or foreign audit entities;
• any decision-maker of a tribunal within the meaning of §§ 577-of the Code of Civil Procedure [Zivilprozeßordnung (ZPO)] based in Austria, with a base yet to be determined (Austrian adjudicator) or based in a foreign country; or
• any person being an employee or representative of a company.
   

Under Austrian law also corporate entities may be criminally liable. The criminal liability of legal persons was introduced by the so-called “Verbandsverantwortlichkeitsgesetz” (Corporate Liability Act, BGBl I 2005/151, as amended). Criminal liability of companies may be imposed under the conditions that: 

• the offense was committed in favor of the respective entity; or
• the action of the offender violates the obligations of the entity.

Furthermore, in the case that the underlying offense was committed by an employee (not a decision-maker), criminal sanctions may only be imposed on a company if the commission of the offense was made possible or substantially facilitated by the fact that the entity failed to exercise due diligence as required and reasonable under the circumstances, in particular by failing to take adequate technical, organizational or personnel measures for preventing such acts.
 

Potential penalties depend on the criminal offense committed by the offender. The applicable ranges of sentences are set out in the following list:

Sections 304, 307:

• up to three years imprisonment;
• if the offense involves an amount between EUR 3.001, to EUR 50.000, imprisonment from six months up to five years; and
• if the offense involves an amount of more than EUR 50.000, imprisonment from one to ten years.

Section 305, 306, 307a, 307b, 308, 309:

• up to two years imprisonment;
• if the offense involves an amount between EUR 3.001,  to EUR 50.000, up to three years imprisonment; and
• if the offense involves an amount of more than EUR 50.000, imprisonment from six months up to five years.
   

Corporate entities may only be punished under the Corporate Criminal Liability Act by the imposition of a monetary fine. The penalty is based on a daily rate system and is calculated on the basis of two criteria:

• first, the number of daily rates; and
• second, the amount imposed for each daily rate.

The possible number of daily rates depends on the criminal offense triggering corporate criminal liability. For violations of Sections 304 and 307 of the Penal Code, the entity may be fined with up to 85 daily rates, for the other anti-bribery offenses listed above with up to 70 daily rates.

The monetary amount imposed for each daily rate depends on the financial situation of the entity, taking into account its economic performance. It shall be set at an amount which corresponds to the 360th part of the annual profit or which exceeds or falls short of this by no more than one third, but at least at EUR 50, and no more than EUR 10,000.

It follows, in the present context, that the highest possible sentence for an entity may be a fine of EUR 850 thousand (Sections 304, 307 of the Penal Code) or EUR 700 thousand (sections 305, 306, 307a, 307b, 308, 309 of the Penal Code).

The relevance of a compliance program depends on whether the offense was committed by a decision-maker or an “ordinary” employee.

If the underlying offense was committed by a decision-maker, a compliance program is usually not relevant, since the law stipulates that the fact that a criminal offense was committed by a decision-maker already irrefutably demonstrates that the company can be accused of a breach of duty of care and that the entity is to be sanctioned accordingly.

However, a compliance program may constitute a defense in cases in which criminal offenses are committed by “ordinary” employees (non-decision makers). In these cases, the public prosecutor has to prove that the commission of the offense was made possible or was substantially facilitated by the fact that the entity failed to take due and reasonable care, in particular by failing to take adequate technical, organizational or personnel measures to prevent such acts.

The Austrian law provides for a leniency program and a kind of a deferred prosecution agreement (called “diversional completion”).

Leniency Program

According to Section 209a Criminal Procedure Code (which applies to natural persons as well as to corporate entities), the public prosecutor can terminate the proceedings by diversionary measures (in particular the payment of a sum of money) instead of an indictment, if the accused voluntarily discloses his knowledge of facts which are not yet the subject of an investigation conducted against him and the knowledge of which contributes significantly to:

• decisively promoting the investigation of a serious criminal offense; or
• investigating a person who is or has been a leader in a criminal organization, criminal group or terrorist organization.

Taking part in this leniency program is only possible if a criminal conviction does not appear necessary in view of all relevant circumstances (in particular also the witness statement) in order to deter the accused from committing further criminal offenses.

The above mentioned “sum of money” as a diversionary measure is determined in daily rates. The number of daily rates can be set by the public prosecutor and can reach up to 75 daily rates (to the amount of each daily rate please see the answer to "Assuming corporate entities are liable for violating the legislation, what is the penalty for corporate entities violating the law?" above).

Diversional Completion

Also, if the requirements for the leniency program are not fulfilled, investigations against an entity do not necessarily end in court-proceedings. According to Section 19 Corporate Liability Act, the public prosecutor can terminate the proceedings by diversionary measures (in particular payment of a sum of money) instead of by indictment, when the entity compensates the damage caused by the offense and a criminal conviction does not appear necessary in order to deter the entity from committing further criminal offenses. Furthermore, the public prosecutor has to set a divisionary measure, which can be:

• the payment of a sum of money (up to 50 daily rates);
• setting a probationary period of up to three years (in connection with the order to fulfill specific measures within the entity to prevent the commission of further offenses within the entity); or
• the order to provide certain services of general interest-free of charge within a period to be determined which may not exceed six months.