Covid-19 business criminal law and other issues in Austria

Potentially, yes. Austrian criminal law includes the offence of intentionally and negligently impairing the health of another, as well as the offence of intentionally or negligently creating a hazard for individuals due to contagious diseases such as COVID-19.
Austrian criminal law also recognises criminal liability for businesses and companies. 

Austria issued a wide-reaching administrative regulation to prevent COVID-19 spread in March 2020 1 Verordnung gemäß § 2 Z 1 des COVID-19-Maßnahmengesetzes and Verordnung betreffend vorläufige Maßnahmen zur Verhinderung der Verbreitung von COVID-19  and has now published (30 April 2020) a new administrative regulation 2 Verordnung des Bundesministers für Soziales, Gesundheit, Pflege und Konsumentenschutz betreffend Lockerungen der Maßnahmen, die zur Bekämpfung der Verbreitung von COVID-19 ergriffen wurden , which shall serve to ease restrictions to a certain degree but continue to uphold public measures such as mandatory face masks and a ban on public events. 

For the purposes of criminal prosecution, both the potential (emphasis added) risk of spreading COVID-19 and the actual act of spreading of the disease are subject to criminal prosecution. As a result, anyone who, contrary to the administrative regulations, continues to operate, for example business premises, and thereby creates a risk of spreading COVID-19 is liable to prosecution.

In principle, yes if senior management or other company representatives intentionally or negligently contribute to a COVID-19 health risk.

Please note that in addition to individuals, the company which employs the senior management or representatives may, under certain additional prerequisites also become liable under Austrian criminal law (Verbandsverantwortlichkeitsgesetz). 

Violations of the aforementioned criminal law provisions are punishable by imprisonment of up to three years or up to 85 daily rates for companies or businesses. Daily rates are calculated on the basis of yearly earnings of companies or businesses, the maximum daily rate amounts to EUR 10,000. The maximum fine for a violation of the aforementioned criminal law provisions (per case) would consequently amount to EUR 850,000. 

We are currently aware of investigations by the public prosecutor's office regarding the skiing town of Ischgl in Tyrol, Austria. Prosecutors are reportedly investigating if public officials had knowledge of specific cases of infected individuals in the local tourism industry but willingly decided not to close down businesses in order to prevent harming the region’s profitable tourism industry. 

Austria has, in general, lifted lockdown restrictions as of 1 May 2020. However, the following restrictions still apply: 

• Face masks are mandatory when travelling on public transport and in the workplace
• Public events are generally banned
• Restaurants remain closed until 15 May 2020

In principle, liability may arise by (i) staff claiming unsafe working conditions in addition to (ii) business partners claiming to have been exposed to a health risk. However, we are currently not aware of any discussions or cases regarding either of these liability scenarios.

A class action suit initiated by holidaymakers who have spent their skiing holiday in Ischgl is apparently underway, however no details have been made public. In theory, companies and public entities may face the risk of a class action suit for general COVID-19 negligence or wilful misconduct. 

It should additionally be noted that the majority of COVID-19 laws are subject to a law review procedure at the Austrian Constitutional Court. The applicants argue that the COVID-19 laws are unconstitutional.