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Since 17 December 2023 at the latest, companies and legal entities in the public sector with more than 50 and fewer than 250 employees must have set up an internal whistleblower system. Whistleblowers must therefore be able to report information on legal violations within the company to this body.

Material scope of application

Minimum standards are provided for the protection of persons who report unlawful acts in the following areas:

• Public procurement
• Financial services
• Money laundering and terrorist financing
• Product safety
• Road safety
• Environmental protection
• Nuclear safety
• Food-feed safety, animal health and animal welfare
• Public health
• Consumer protection
• Data protection
• Corruption.

Personal area of application

The Directive applies to the following whistleblowers in the private or public sector:

• Employees
• Self-employed
• Management bodies
• Volunteers
• Unpaid interns
• Whistleblowers whose employment relationship has not (yet) begun and who have obtained information about an offence during the recruitment process (recruiting).

Reporting system

• An internal reporting system must be available to the whistleblower, in writing (e.g. online platform) and/or verbally (e.g. whistleblowing hotline, personal meeting)
• An impartial person or department must be made responsible for the investigation, follow-up and contact with the whistleblower
• The reporting channel must be secure, i.e. the identity of the whistleblower and third parties named in the report must be treated confidentially
• Feedback to the whistleblower must be provided within 3 months at the latest.

Sanctions

The law does not provide for any fines.

BUT: If companies do not have a suitable reporting system, the whistleblower can turn directly to external reporting channels (authorities) or the public (media).

A whistleblower is entitled to protection from reprisals if he discloses information (via the media) when:

• Internal signalling channels were not available
• no appropriate measures were taken for its internal notification within the deadline
• he has sufficient reason to assume that the alleged infringement may jeopardise the public interest.

It must therefore be of great interest to the company subject to the implementation obligation to install appropriate internal reporting systems in good time in order to prevent reputational damage caused by external reports and, if legal violations have actually occurred, to secure leniency status.

I work with experts to install a web-based whistleblowing system and will be happy to support you in implementing it in accordance with the guidelines!

Benefit from the legal obligation of confidentiality and the lawyer's right to refuse to give evidence to the authorities and outsource your legal obligation to set up an internal reporting centre!

February 2024

My clients were recently served with another favourable decision by the Administrative Court in construction matters, which is of significance for the whole of Upper Austria.

In principle, the Upper Austrian building regulations stipulate that the owner of a property must tolerate the temporary use of his property for the realisation of a building project under certain circumstances. Particularly in the case of construction projects on slopes, it is often the case that the excavation pit needs to be secured by setting anchors on the neighbouring property. With this technique, pipe anchors are placed underground and filled with grout - usually the most cost-effective method for the developer. While the anchors are pulled out of the ground again after the work has been completed, the grout remains in the neighbour's property.

The Administrative Court has now fully endorsed our legal opinion, according to which the fact that such cement blocks remain in the neighbour's property cannot be regarded as merely temporary, even if these cement blocks do not represent an obstacle to future development.

The Administrative Court for the Federal Province of Upper Austria has thus once again strengthened the legal position of neighbours in construction matters; neighbours do not have to tolerate such encroachments on their property rights.

The Withdrawal Agreement between the EU and the United Kingdom has brought legal certainty for British citizens residing in Austria and their family members.

For the continued right of residence of those British citizens and their family members who already exercised their right of residence in Austria before 31.12.2020 and applied for a residence permit in accordance with "Art. 50 TEU" (Treaty on European Union) between 01.01.2021 and 31.12.2021, unrestricted access to the Austrian labour market continues to apply.

All British citizens who did not exercise their right of residence in Austria before 31 December 2020 will in future be treated as third-country nationals and must apply for a residence permit in accordance with the Settlement and Residence Act.

For my clients, a legal dispute that lasted almost four years came to a successful conclusion this week with the decision of the Supreme Court.

It is now clear that the municipality's legal opinion - according to which the maximum permissible use of the building land (floor area ratio) prescribed by the municipality itself has no effect on the neighbours and they therefore cannot insist on compliance with it - is wrong.

The Administrative Court specifically states:

• Subjective public neighbouring rights arise from the provisions on building density, which in any case also includes the number of storeys
• The local development concept is part of the zoning plan and the regulations contained therein are binding on the municipality
• The numerical value of the floor area ratio of 0.25 to 0.4 is sufficiently concretised and therefore legally binding
• For the neighbour concerned, this means that he can successfully claim that the upper limit of the floor area ratio has been exceeded.

This decision means that neighbours will in future have a secure legal position in building procedures with regard to the building density of the building ground.

In future, it will therefore no longer be possible for the municipality to disregard the provisions of the zoning plan and the local development concept without taking the rights of neighbours into account.

My client and his wife are highly qualified academics from a third country who want to settle in Austria with their family.

In order to fulfil the legal requirements regarding their ability to pay, they submitted a declaration of liability from a Swedish relative and proved their ability to pay with a securities account and a savings book totalling approx. 90,000 euros.

Nevertheless, this was not enough for the Vienna Administrative Court, which ruled that the applicant's means of subsistence for the 12-month residence permit applied for were not guaranteed. 

The Administrative Court recently followed our legal arguments against this and overturned the decision of the Vienna Administrative Court on the grounds of illegality.

From the reasoning:

• When applying for a residence permit, only one declaration of liability may be submitted. Although several persons may appear as liable parties in a declaration of liability, this will result in each liable party being liable for the full amount of the liability jointly and severally.
• However, the validity of a declaration of liability is not in itself affected by the fact that, in the case of several liable parties, one of the signatories does not have the necessary financial capacity and therefore cannot be recognised as a liable party.
• Neither Austrian citizenship nor residence in Austria are mandatory requirements for submitting a declaration of liability.
• The validity of the declaration of liability requires proof of the ability to pay of the person making it. The declaration of liability is valid if the liable party's ability to pay is sufficient to cover not only his or her own maintenance but also the maintenance of the beneficiary alien without recourse to social welfare benefits.
• Costs that could arise in connection with measures to terminate residence can only be included in the calculation of the necessary funds if there are indications of their occurrence and amount.
• Savings must be offset against the period for which the residence permit applied for is to be issued and not against the statutory period of validity of the declaration of liability of 5 years.
• In principle, the legally required maintenance may also be covered by savings. The same applies to credit balances from securities accounts that are available at any time.

In the end, the arduous journey of the client and his family came to a good and safe legal end; our fight against the incorrect decision of the Vienna Administrative Court was successful: The stay in Austria was secured!

Note: I am involved in these proceedings as a defence lawyer.

The inglorious events surrounding the criminal investigation into Hypo Alpe-Adria-Bank's lending activities have been enriched by another facet:

Recently, the Higher Regional Court of Graz, as the court of appeal, dismissed the charges in the "Schlosshotel Velden" case because:

The causes of the financial loss incurred in connection with the realisation of the project are unclear. 

The Higher Regional Court expressly points out that after the start of the construction work, there were some blatant construction cost overruns. No indication of any criminally relevant behaviour on the part of the bank's executive bodies could be identified in this context. 

Furthermore, the economically unfavourable business conduct of the hotel operator may have contributed significantly to the economic imbalance, which is also not the responsibility of the bank's executive bodies.

• With regard to the necessary careful preparation of the project, the Higher Regional Court found that an internally adapted feasibility study was available. To check its plausibility, a further 7 external expert opinions were obtained before the project was realised, all of which came to a positive conclusion.

• Investigation deficits do not allow the assumption of a probability of conviction.

As a defence lawyer in these proceedings, my joy at this decision is nevertheless clouded. You have to keep this in mind:

• The investigations have been going on for more than 10 years.

With the decision of the Higher Regional Court of Graz, the public prosecutor's office must now investigate further. It then has to decide whether to (re)file charges. According to the considerations of the Higher Regional Court outlined above, this is difficult to imagine, but the proceedings will nevertheless drag on.

• An expert witness was called in by the public prosecutor's office in Klagenfurt, but was ultimately dismissed.
• There is therefore no expert report, but costs totalling almost €500,000 were incurred for the work on this report, which was never completed and never submitted. A fact that should not please the taxpayer, who has to pay for a large part of it.