Who is protected under the Austrian Whistleblowing Act?

The persons who have obtained information about legal violations during a current or previous professional activity are protected under the Whistleblowing Act. For example:

• employees, applicants, interns, and self-employed persons;
• members of an administrative or management body;
• supervisory body members of a legal entity; and
• persons that work or have worked under the supervision and management of a contractor, a subcontractor of the legal entity, or its suppliers.

Additionally, the Whistleblowing Act protects shareholders of legal entities who have obtained information about violations of law due to a current or previous professional relationship with this legal entity.

Certain provisions also apply to persons who support whistleblowers in providing the information.

What subject matters are protected under the Whistleblowing Act?

The following are protected in the Whistleblowing Act:

• financial services

• financial products and financial markets;
• prevention of money laundering and terrorist financing;
• security in civil aviation;
• shipping and security of offshore oil and gas activities;
• public procurement;
• product safety and conformity;
• transport safety;
• environmental protection;
• radiation protection and nuclear safety;
• food and feed safety, animal health, and animal welfare;
• public health;
• consumer protection;
• protection of privacy and personal data and security of network and information systems;
• prevention and punishment of criminal offenses (mainly provisions on corruption penalties) ;
• violations of EU internal market rules;
• violations of EU rules on competition and State aid; and
• violations of EU internal market rules in relation to acts that violate corporate tax rules.

The following are explicitly not protected under the Whistleblowing Act:

• the confidentiality obligations of the legally regulated health professions;
• the information covered by the right to confidentiality of lawyers, notaries, and those practicing the public accounting professions including contractual agreements made with partners or shareholders or supervisory bodies of a law firm as well as employees or assistants of lawyers, notaries, or trustees to maintain confidentiality, the application of the provisions of the Code of Criminal Procedure;
• the information entrusted to a pastor of a legally recognized church or religious society; and
• certain procurement procedures.

Additionally, certain sector-specific legislation limits the subject matters further.

What kind of report is protected under the Whistleblowing Act?

Whistleblowers are entitled to notify an internal or external body if they have reasonable grounds, at the time of notification, to believe, based on the factual circumstances and the information available to them, that the information they have provided is true and falls within the scope of the Whistleblowing Act. This is the case if the whistleblower has information which, according to general experience, can be claimed to be correct. Such reports can be made in verbal or written form.

The whistleblower does not need to provide any evidence to their claim merely the reasonable grounds, at the time of notification, to believe, based on the factual circumstances and the information available to them, that the information they have provided is true and falls within the scope of the Whistleblowing Act.

How are whistleblowers protected?

Whistleblowers are protected from retaliation. Measures taken in retaliation for a legitimate report are legally invalid. Such measures include:

• the suspension, dismissal, or comparable measures;
• the non-renewal or premature termination of a fixed-term employment contract;
• the premature termination or cancellation of a contract for goods or services;
• the downgrading or denial of a promotion; and
• the transfer of duties, change of place of work, reduction in pay, or change in working hours.

The person who implemented the retaliatory measure is obliged to reverse the retaliatory measure, restore the lawful situation, compensate for the financial loss, and pay compensation for the personal injury suffered.

Furthermore, the identity of the whistleblower and all other information from which the identity of whistleblowers can be directly or indirectly deduced must be kept confidential.

The Whistleblowing Act also protects anonymous whistleblowers from retaliation measures if, as a result of their anonymously provided information within a legitimate report, their identity becomes known to others through no fault of their own.

What companies need to establish internal reporting channels?

Companies with more than 50 employees are obliged to enable certain their employees, applicants, interns, etc. to provide information internally. In companies with a changing, specifically a seasonally fluctuating number of employees, the number of employees is to be determined on the basis of the average number of employees during the previous calendar year.

Companies shall ensure that their employees, applicants, interns, etc. have easy access to clear information on the possibility and procedure for reporting to internal bodies and reporting to external bodies. This includes the existence, the purpose, and the functioning, as well as the limitations of a whistleblowing scheme. Employees must be assured that their data will be treated confidentially. They should also be informed about the consequences of abusing the scheme and be assured that using the scheme in good faith will not trigger detrimental consequences.

Which external reporting channel can be used?

Whistleblowing reports can generally be made to the Federal Bureau of Anti-Corruption, which is the external body (the public entity to which whistleblowing reports can be made) responsible for all whistleblowing reports. There are however regulations on certain sector-specific external bodies.

The Austrian Whistleblowing Act states that whistleblowers should first check whether they can submit a report to an internal body. Information should be provided to an external body if it is not possible, not appropriate, or not reasonable to handle the information in the internal whistleblower system or if it has proven to be unsuccessful or hopeless.

What consequences can be expected in the event of a violation of the Whistleblowing Act?

Violations of the Austrian Whistleblowing Act are subject to administrative fines of up to €20,000 (up to €40,000 in the event of a repeat offense). An administrative offense is committed by anyone who:

• obstructs or attempts to obstruct a whistleblower, their supporters, or persons close to the whistleblower in connection with a whistleblowing incident or puts them under pressure through deliberate legal or administrative proceedings;
• retaliates against the whistleblower;
• violates the provisions on the protection of confidentiality; or
• knowingly provides false information.

Dietmar Huemer Partner
[email protected]
Katharina Spreitzhofer Trainee
[email protected]
Huemer | Legal Solutions, Austria