CMS Expert Guide To Mandatory Reporting Of Criminal Offences For Companies And Their Responsible Persons in Austria

In Austria, the obligation to report criminal offences is most clearly established for public authorities and officials. According to § 78 of the Strafprozessordnung (StPO), public bodies are required to report all offences subject to public prosecution (Offizialdelikte) that come to their knowledge in the course of their duties. This includes serious offences such as murder (§ 75 StGB), rape (§ 201 StGB), robbery (§ 142 StGB), sexual abuse of minors (§§ 206–208 StGB), and terrorism-related offences (§§ 278b ff StGB).

While private individuals in Austria are generally not required to report criminal offences, § 286 of the Strafgesetzbuch (StGB) penalizes the failure to prevent a punishable offence if the person had a specific legal duty to prevent the act and could have done so without undue risk. This applies in cases where the individual is a guardian— such as a parent, caregiver, or someone in charge of safety. Importantly, this provision does not create a general duty to report crimes to the police or authorities. The offence lies in the failure to act when legally obliged, rather than in mere silence.

A notable reporting obligation exists in the area of child protection, as provided in § 37 of the Bundes-Kinder- und Jugendhilfegesetz (B-KJHG). This provision obliges institutions and professionals who work with children — including schools, healthcare providers, and social services — to notify the child and youth welfare authority if there is a well-founded suspicion that a child’s well-being is at risk (e.g., due to abuse, neglect, or sexual violence). While this is not a criminal law reporting duty per se, it establishes a mandatory safeguarding obligation that may lead to further criminal investigation. Failure to comply with this duty could have administrative or professional consequences, particularly where harm results from non-reporting.

There are, additionally, some sector-specific reporting obligations which may or may not result in criminal prosecution:

• Financial institutions and related entities have a statutory obligation to report suspicious transactions to the Financial Intelligence Unit (FIU) to prevent money laundering and terrorist financing.
• Bankwesengesetz (BWG) and Finanzmarktaufsichtsgesetz (FMAG) impose duties on banks and financial service providers to report regulatory breaches and suspicious activities to the Financial Market Authority (FMA).
• Public officials and contractors have duties to report corrupt practices or irregularities in public tenders.

Since there is no reporting obligation for private individuals, there is also no rule as to who in company should report an offence.

Under corporate law principles, members of the executive management carry ultimate responsibility for ensuring legal compliance. If they become aware of a reportable offence committed within the company, they have to consider if reporting the offence is for the benefit of the company or not. They also have to consider if not doing so would violate their duty of care or lead to liability for § 286 StGB (failure to prevent a punishable offence).

As lined out above, the risk of non-reporting mainly lies with public officials and serious offences since there is not reporting obligation for private individuals. Failure to fulfill this duty can lead to criminal liability under related provisions, depending on the context.

4.1 Risk of Retaliation and Workplace Reprisal

Whistleblowers or employees who disclose criminal acts might encounter retaliation, such as harassment, demotion, or dismissal. The Hinweisgeberschutzgesetz (HSchG)  provides protections against such retaliation, especially for reports concerning breaches of EU law (e.g., corruption, public procurement fraud). However, despite these protections, fear of negative consequences remains.

4.2 Legal Risks from False or Malicious Reporting

Under Austrian criminal law, knowingly submitting a false report can trigger liability.

Accordingly, reporters must ensure that their reports are made in good faith and based on reasonable grounds.

4.3 Confidentiality and Professional Secrecy

Certain professions in Austria are bound by confidentiality obligations (e.g., doctors, lawyers, clergy). Violating these without a legal basis can lead to professional disciplinary actions or criminal penalties under various sector-specific laws. Reporting criminal offences that implicate professional secrets must therefore carefully navigate these rules.

4.4 Personal Safety and Privacy Concerns

Individuals reporting serious crimes, especially organized crime, corruption, or abuse, may fear personal reprisals or threats. Although mechanisms exist to protect whistleblowers’ identities and ensure their safety, practical risks remain.

In Austria, both companies (legal entities) and individuals within companies can face accessory criminal liability under certain conditions.

5.1 Criminal Liability of Companies (Legal Entities)

• Since 2005, companies can be held liable for certain offences committed by their organs, employees, or agents, particularly in the context of:
  • Economic crimes (e.g., fraud, corruption, money laundering)
  • Health and safety violations
  • Environmental offences
• Liability arises when the offence is committed in the interest or for the benefit of the company and when the company fails to implement adequate compliance measures to prevent it.
• Sanctions include fines, exclusion from public tenders, and other administrative penalties—there is no imprisonment for companies, but key individuals may face prison.

5.2 Accessory Criminal Liability for Individuals in the Company

• Principals, accomplices, and accessories can be held criminally liable under the Austrian Strafgesetzbuch (StGB).
• Individuals within a company—such as managers, employees, or other agents—can be held liable if they:
  • Intentionally assist or encourage a crime, or
  • Incite or procure a crime, or
  • Commit the crime jointly with others.
• Liability depends on the person’s intent and active participation or facilitation of the offence.