Austria: Compliance Officer Liability – Is There A Way Out?

Last Updated: 20 September 2012
Article by Heidemarie Paulitsch

Most Read Contributor in Austria, September 2019

A compliance officer (CO) is liable for criminal conduct within the company if the CO can be charged with dereliction of duties and wilfully and knowingly took, or failed to take, action. Liability strongly depends, however, on the contractual arrangement of the CO's position, which must be assessed on a case-by-case basis.

In respect of civil liabilities, the CO is liable for damages affecting the company or third parties for wilful dereliction of duties. Due to the employee privilege based on the Austrian Employee Liability Act, the CO is not liable for accidents or excusable poor performance.

Criminal liability of the CO

Dereliction of duty under administrative law

In Austria, the potential for a CO's criminal liability begins at the point where his or her duties and responsibilities have been definitively standardised by law. This is the case in certain administrative regulations, such as in Sec. 18 of the Austrian Securities Supervision Act (Wertpapieraufsichtsgesetz; WAG) and Sec. 82, para 5 of the Austrian Stock Exchange Act (Börsegesetz; BörseG). The administrative law mandates that a company establish a permanent, independent compliance function to ensure compliance with certain WAG or BörseG regulations. The duties, responsibilities, and functions of the CO must therefore be circumscribed by the law. They specifically affect the protections afforded to investors and customers, the guidance and information to employees and executive management, quality assurance, and supervisory and reporting duties.

The CO thus assumes a guarantor position as defined in Sec. 2 of the Austrian Criminal Code (ACC). This means that, by virtue of the obligations affecting the CO as standardised in the legal system, he must conduct himself/ herself to avert the successful performance of a criminal act (eg, by a company employee) or to immediately notify executive management of the act. So, the CO may be culpable if, with full knowledge of an employee's criminal act within the company, the CO does nothing. To avoid criminal liability, the CO must at a minimum report the criminal act to executive management.

Liability for violation of the anti-corruption and cartel law

If a CO is exclusively responsible for the areas of anticorruption and/or antitrust, then the guarantor role of the CO is debatable. Anti-corruption and antitrust are legal domains in which Austrian legislators have imposed no obligations on companies to take active measures for preventing criminal acts or cartel-related infringements. If the company assigns compliance duties and responsibilities to the CO for adherence to the anti-corruption and cartel law, then this is predicated on the voluntary discretion of the company, without a legal obligation existing to do so. At this time, Austria's legal position merely intends to mitigate or dispense with the company's penalty or liability if a CO within the company is able to demonstrate that suitable preventative measures against such types of legal infringements exist.

Still, the implementation of a compliance programme, together with the installation of a CO, is recommended, from both the legislature and the doctrine and jurisprudence.

Thus, the law does not govern whether the CO is accorded a guarantor role in the area of anti-corruption and anti-trust. As of yet, no Supreme Court ruling exists on this issue. From the doctrinal standpoint, the employment contract or description of duties may give an indication of the guarantor role, because these documents set forth the duties, responsibilities and authorities of the CO. In this respect, it is essential that the CO has in fact assumed these assignments.

The following attributes are indicative of the CO's guarantor role:

  • an express circumscription of any conduct subject to penalty, which the CO must counteract;
  • the authorities to issue directives and commands to company employees;
  • the authority to enforce disciplinary action against employees;
  • inspection, access, and informational rights;
  • a contractually defined disclosure obligation towards a supervisory body or penal authority;
  • special reporting duties to executive management.

From a practical viewpoint, the CO's guarantor role must be assumed if the general responsibilities are agreed as follows:

  • assess legal compliance risks and advise on compliance matters;
  • conduct internal compliance audits;
  • ensure proper reporting of violations;
  • act as an independent review and evaluation body, to ensure that compliance issues are being appropriately evaluated, investigated, and resolved;
  • respond to alleged violations of legal standards, regulations, and laws;
  • respond to queries, detected offenses, develop corrective action, and report findings;
  • decide together with other senior managers on consequences of accountability violations.

If a CO who is tasked with preventing corruption within the company, and who is assigned a guarantor role accordingly, intentionally fails to act, despite having knowledge of the practice of gift-giving to officeholders, then such failure could lead to a punishable accessory involvement through omission in the prevention of bribing officeholders (Secs. 12, 307 ACC). The same would apply to knowledge of arrangements in the granting of contracts that would impede competition (Secs. 12, 168b ACC). In this respect, it suffices that the CO seriously considered the realisation of a criminal act to be possible and yet accepted it.

As to the impunity of the CO, in general terms, it should be sufficient that the CO has met his or her reporting and notification duties towards the executive management bodies or another superior (provided that the CO has knowledge of a punishable incident at the company and the taking up of such matters would fall within his or her sphere of responsibility).

This matter should not be influenced by the question of whether the CO has effectively prevented the occurrence of an offence. Determinative is whether, depending on the CO's training and prior knowledge of the matter, the CO bears any culpability because he or she misjudged an incident within the company and therefore did not meet the notification duty.

In sum, a CO's liability largely hinges on the contractual arrangement between the employer and the CO. All contractual amendments or new arrangements of the CO's activities and duties as CO should thus be assessed individually.

Civil liability of the CO

Compensatory damages by the CO to the employer or third party must be judged according to the general principles of the Austrian Employee Liability Act (Dienstnehmerhaftpflichtgesetz; DHG). Accordingly, the CO is not liable for excusable poor performance or for oversight (employee privilege). The employer may not, therefore, take recourse against the CO if a third party is asserting a claim against the employer.

The court may mitigate damages caused by minor or gross negligence by the CO.

A criminal conviction of the CO due to intentional accessory acts to a criminal action frequently serves as the basis for employer or third party damages claims. In the event of negligence, the above-described privilege does not benefit the CO under the DHG: the CO is fully liable.

In the event of liability towards third parties, it is also significant whether the CO has omitted or resorted to certain measures with the mutual agreement of superiors that ultimately led to third party damages.

This article was originally published in the schoenherr roadmap`12 - if you would like to receive a complimentary copy of this publication, please visit:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions