New reform of the criminal leniency programme in Austria

The "criminal law competence package", which entered into force on 1 January 2011 and thereby introduced a "major leniency programme" into Austrian criminal law, is again being slightly reformed. The main tool to detection for cartels and corruption, whose duration was first extended in 2016, will now be extended for another 7 years and slightly adapted. From 2022 on it shall be possible to contact not only the public prosecutors, but also the criminal police to facilitate access to this instrument. Regarding leniency for bid-rigging, only cooperating employees, and not all of the cooperating company shall be protected in the future.

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What does the "major leniency programme" cover?

The "major leniency programme", introduced in 2011 and extended for the first time in 2016, has already been used 15 times. The scheme covers, in various forms, corruption offences such as embezzlement, (professional) serious fraud and other offences, as well as bid-rigging, i.e. collusion of bids in tender procedures.

What is being reformed in the leniency programme for corruption offences?

Section 209a of the Code of Criminal Procedure (StPO), which relates to corruption offences, is to be supplemented to the extent that, from 1 January 2022, the criminal investigation department, and not exclusively the public prosecutor's office as at present, is also to act as a contact for people seeking leniency in order to provide easier access to this tool.

What role does criminal leniency play in antitrust law?

In antitrust law, a leniency programme for companies has already existed since 2006, according to which they can report antitrust violations to the Federal Competition Authority and cooperate with the Federal Competition Authority in the further discovery. Subsequently, pursuant to Section 11 (3) WettbG, the Federal Competition Authority may, under the conditions specified therein, refrain from applying for the imposition of a fine or at least apply for a reduced fine, the latter if the Federal Competition Authority was already aware of the facts of the case.

For competition authorities, the leniency programme is a valuable and proven instrument for uncovering cartels, which until now, however, had not covered any possible criminal law component for the employees involved in a cartel within the European Union. Through the criminal procedural regulation introduced in 2011 in Section 209b of the Code of Criminal Procedure, Austria took on a pioneering role within the European Union and became the model for Article 23 of the so-called ECN+ Directive, according to which employees who were involved in agreements that were punishable by law must be given the opportunity to obtain personal immunity from prosecution if they cooperate fully with the authorities and courts.

What changes does the new draft law bring to the antitrust regime?

However, the draft law now presented restricts the application of the leniency programme in the field of competition law to the extent that any immunity from prosecution can now explicitly only be applied to cooperating employees and no longer to all employees of the company.

However, the employees will still not be able to file their own application under Section 209b StPO. As before, they must rely on the Federal Competition Authority first granting the company leniency status and then applying to the Federal Cartel Prosecutor for immunity from prosecution for the employees. In the next step, the Federal Cartel Prosecutor will file an application with the Public Prosecutor's Office for Economic Affairs and Corruption to discontinue the investigation proceedings against these employees. The Public Prosecutor's Office for Economic Affairs and Corruption must then discontinue the preliminary proceedings after disclosing all facts that are relevant for the clarification.

What are the expectations for the reform of the criminal leniency program for bid-rigging?

In the Explanatory Report, it is assumed that this should lead to a shorter duration of the procedure. However, how this can actually be achieved in practice remains an open question given the existence of the current mechanism.

It remains to be seen what final form of the leniency programme will take in the Code of Criminal Procedure. Currently, it is in the review phase, which will last until 08.11.2021. The current regulation expires at the end of 2021.



Autor: Christina Hummer