New OGH Case Law on “Beneficial Bribery” (nützlichen Bestechung)
In a recent decision, the Austrian Supreme Court held, contrary to previous case law, that bribery does not automatically result in a conviction for breach of trust. A manager who pays bribes in order to give his company an advantage is therefore “only” liable to prosecution for bribery and not at the same time for breach of trust (OGH 26.2.2019, 17 Os 8/18g).
What has changed?
The Supreme Court’s original line of case law on this subject was: criminal liability for bribery automatically leads to criminal liability for breach of trust. The Supreme Court had argued this very formally by saying that the agreement for bribery payments is immoral and therefore void. If a manager nevertheless pays out bribes, he does so without a contractual obligation, which, according to the previous case law, would be an abuse of power that consequently damages the company.
No breach of trust in case of economic benefit
In its new decision, the Supreme Court no longer focuses on the question of the immorality of “bribery agreements”. Instead, it now takes an economic approach and examines whether the company would have benefited from the bribe. If the bribe is matched by a corresponding economic benefit, there is no breach of trust.
Even if a bribe is “beneficial”, it nevertheless remains a punishable offence (the penalty is up to ten years imprisonment). But the fact that there is no additional conviction for breach of trust will likely lead to a milder punishment than before.
Do you have questions on this subject? The BTP Compliance experts will be happy to advise.