Art. 2 (2) - Extension of material scope beyond EU law
The law extends the material scope to include the prevention and punishment of certain criminal offenses (Sections 302 to 309 Austrian Criminal Code which includes corruption and related criminal offenses).
Art. 4 (1) - Extension of personal scope (protected person)
The personal scope of application is identical to the Directive and therefore not extended.
Art. 6 (2) - Acceptance of anonymous reports
The law does not stipulate a legal obligation to accept and evaluate anonymous reports in neither the private sector nor the public sector. However, according to the minimum requirements of the Directive anonymous whistleblowers enjoy protection if their identity becomes disclosed.
Art. 7 (2) - Encouraging internal reporting
The law only stipulates that internal reporting channels shall be established and operated in a manner that encourages whistleblowers to report violations to the internal channel. However, the law does not provide for further or specific encouraging measures.
Art. 8 (7) - Obligation for legal entities in the private sector with less than 50 workers
The law does not stipulate an obligation to establish internal reporting channels and procedures for legal entities in the private sector with less than 50 employees and does therefore not deviate from the Directive’s minimal requirement.
Art. 8 (9) second subparagraph - Exemption for municipalities with fewer than 10.000 inhabitants / fewer than 50 workers / other entities with fewer than 50 workers
This is a subject not covered by the federal law since it falls within the jurisdiction of the Austrian states. However, the individual state laws stipulate that municipalities with fewer than 10,000 inhabitants and associations of municipalities with fewer than 50 employees are not required to establish an internal whistleblower system.
Art. 8 (9) Third subparagraph - Shared internal reporting channels for municipalities
This is a subject not covered by the federal law since it falls within the jurisdiction of the Austrian states. However, the individual state laws stipulate that municipalities may share internal reporting channels Provided that they are separate from and independent of the external reporting systems.
Art. 11 (1) - Authorities competent to receive external reports
According to the law the Federal Office for the Prevention of and Fight against Corruption (Bundesamt zur Korruptionsprävention und Korruptionsbekämpfung; https://www.bak.gv.at/) will be the competent authority for any general whistleblower notifications protected by the national draft law. However, the draft indicates that any external bodies that are already established shall also remain set up and process notices which concern their specific scope of competence. This includes the whistleblowing systems established at:
-) Financial Market Authority (Finanzmarktaufsichtsbehörde (FMA); https://www.fma.gv.at/),
-) Money Laundering Reporting Office (Bundeskriminalamt Meldestelle Geldwäsche; https://bundeskriminalamt.at/308/start.aspx),
-) Supervisory authority for auditors (Abschlussprüferaufsichtsbehörde (APAB; https://www.apab.gv.at/),
-) Federal Competition Authority (Bundeswettbewerbsbehörde; https://www.bwb.gv.at/kartelle_marktmachtmissbrauch/whistleblower_werden),
-) Accounting Authority (Bilanzbuchhaltungsbehörde; https://report.whistleb.com/de/bilanzbuchhaltung),
-) Chamber of Tax Advisors and Auditors (Kammer der Steuerberater und Wirtschaftsprüfer; https://www.ksw.or.at/desktopdefault.aspx/tabid-2/). -) Chamber of notaries (https://www.notar.at/die-notare/kammern/) -) Bar Association (https://www.rechtsanwaelte.at/en/)
Art. 11 (3) first sentence - Competence of authorities to decide on the minority of external reports
Yes. According to the law the competent authority may decide after an assessment that a reported breach is clearly minor and does not require further follow-up.
Art. 11 (4) first sentence - Competence of authorities to decide on closing procedures regarding repetitive external reports
There is no explicit provision which stipulates that competent authorities can decide to close procedures regarding repetitive reports which do not contain any meaningful new information. However, the competent authority may reject a notice that is patently false – which may be the case in such an instance.
Art. 11 (5) - Competence of authorities to handle particular external reports with priority
This competence is not included.
Art. 20 (2) - Financial assistance and support measures for reporting persons
The law stipulates the reporting authority’s obligation to consult potential whistleblowers regarding their protection and potential legal actions. The use of procedual aid is also foreseen. In individual cases in which a person does not qualify for procedual aid, professional associations/representations are authorized to grant support to the extent necessary.
Art. 21 (1) first sentence - Protection measures against retaliation
According to the law any measures taken in retaliation to a justified whistleblowing report are legally invalid. Violations thereof are punishable with a fine of up to EUR 20,000 , in case of repetition up to EUR 40,000 euros. The person who takes certain retaliatory measures is obliged to restore the lawful condition, to compensate for the material damage and to pay compensation for any personal injury suffered.
Art. 23 (1) - Penalties
The hindering or attempt to hinder reporting, retaliating against reporting persons, bringing vexatious proceedings against reporting persons and the breach the duty of maintaining the confidentiality of reporting persons is punishable with a fine of up to EUR 20,000 , in case of repetition up to EUR 40,000 according to the law.
Art. 23 (2) first sentence - Penalties for false reporting
According to the law any person who knowingly submits a false or misleading whistleblowing report commits an administrative offence. For such offences a a fine of up to EUR 20,000. For repeat offenders the fine is envisaged for up to EUR 40,000.
Art. 25 (1) - Further national rights of reporting persons
There are no further rights of reporting persons in the national law.
It may be highlighted that the law does not provide for punishment in the event of failure to set up an internal whistleblowing system by those obligated to do so.
It shall be noted, that with regard to public sector enterprises and legal entities with fewer more than 250 employees a transitional period of six months from the entry into force oshall apply regarding the establishment of internal reporting channels. Therefore, internal channels must be implemented until 25 August 2023.