Draft Bribery Bill - Joint Committee on the Draft Bribery Bill Contents

APPENDIX 2

AUSTRIA

O:\TEXT\Zeder\JURPERS\Englisch\VbVG-english-Zeder.doc

Translation from German  (adopted by the Nationalrat [upper chamber of the Austrian Parliament] on 28 September 2005) IN force 1 January 2006.

Section 1.  (2)  For the purpose of this statute entities shall mean corporations, general and limited commercial partnerships [Personenhandelsgesellschaften], registered partnerships [Eingetragene Erwerbesgesellschaften] and European Economic Interest Groupings.

(3)  For the purpose of this statute the following shall not be entities:

1. a (deceased person's) estate;2. the federal state, provinces and municipalities and other corporations to the extent they enforce laws;


3. recognised churches, religious societies and religious communities to the extent they are engaged in pastoral care.

Decision Makers and Staff

Section 2.  (1)  For the purpose of this statute decision maker shall mean a person who

1. is a managing director, an executive board member or Prokurist [translator's note: compare: authorised officer] or who is authorised in a comparable manner to represent the entity vis-aà-vis third parties either according to statutory power of representation or based upon contract,2. is a member of the supervisory board or board of directors or otherwise exercises controlling powers in a leading position, or


3. otherwise exercises relevant influence on the management of the entity.

  (2)  For the purpose of this Statute staff shall mean a person who works for the entity 1. on the basis of an employment relationship, apprentice relationship or other training relationship,

2. on the basis of a relationship that is subject to the provisions of the Outwork Act [Heimarbeitsgesetz] 1960, BGBl. [Federal Law Gazette] No 105/1961 or that is of an employee-like status,

3. as an employee provided on a temporary basis as defined in Section 3 para 4 of the Act on Temporary Provision of Employees [Arbeitskrüfteberlassungsgesetz—AüG], BGBl. No 196/1988, or

4. on the basis of a service relationship or other special public-law relationship.

CHAPTER 2

Responsibility of Entities—Provisions relating to Substantive Law

Responsibility

Section 3.  (1)  Subject to the additional conditions defined in paragraphs 2 or 3 an entity shall be responsible for a criminal offence if

1. the offence was committed for the benefit of the entity or2. duties of the entity have been neglected by such offence.

(2)  The entity shall be responsible for offences committed by a decision maker if the decision maker acted illegally and culpably.

  (3)  The entity shall be responsible for criminal offences of staff if


1. the facts and circumstances which correspond to the statutory definition of an offence have been realised in an illegal manner; the entity shall be responsible for an offence that requires wilful action only if a staff has acted with wilful intent, and for a criminal offence that requires negligent action only if a staff has failed to apply the due care required in the respective circumstances; and

2. commission of the offence was made possible or considerably easier due to the fact that decision makers failed to apply the due and reasonable care required in the respective circumstances, in particular by omitting to take material technical, organisational or staff-related measures to prevent such offences.

  (4)  Responsibility of an entity for an offence and criminal liability of decision makers or staff on grounds of the same offence shall not exclude each other.

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Prepared 28 July 2009