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Prevention of Conflict of InterestDanube Region StatesSofia, 28th June 2012

Legal Regime, Good Practices and Procedures for Ascertainment of

Conflict of Interests in Austria

Michael Ocvirk

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Ascertainment of Conflict of Interests in Austria

Regulations in: Criminal Law Public Services Law (including related laws) Codes of Conduct

For the Following Topics:1. OECD-Indicators on Conflict of Interests:

Situation in Austria2. Bias (Conflict of Interests in General)3. Secondary Employment4. Cooling Off-Period: Leaving Public Administration

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1. OECD-Indicators on Conflict of Interests: Austria

Assets Liabilities Income Source Income Amount Outside Position: paid Outside Position: non-paid Gifts Previous Employment

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1. OECD-Indicators on Conflict of Interests: Austria

§§ 55, 55a, 55b Security Police Law („Sicherheitspolizeigesetz“)

Upon beginning of employment, civil servants have to fill in a security

declaration (inter alia) giving information about their Liabilities and Previous employment

Other indicators Income source, income amount, outside paid position

will be dealt with in No. 3 (Secondary Employment) although income source and amount are only partly regulated whereas unpaid positions are not envisaged in any provision at all

Gifts will be covered in No. 2 (Bias).

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Ascertainment of Conflict of Interests in Austria

§ 302 para. 1 + 2 Criminal Law („Strafgesetzbuch“):Abuse of Official Authority

General clause:

Para. 1: A public official who wilfully abuses his authority to conduct official matters executing the laws in the name of the federal government, a Land, an association of municipalities, a municipality or another body under public law with the intent to harm the rights of another person shall be punished by imprisonment from six months to five years.

Para. 2: A person who commits the offence conducting official business with a foreign power or a supranational or cross-national institution shall be punished by imprisonment from one year to ten years. A person who, by committing the offence, causes a damage exceeding EUR 50,000 shall be punished in the same way.

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Ascertainment of Conflict of Interests in AustriaChart to decide whether an official act is legal or not:

Source: Professional Ethics: Careful Advantage, Ministry of Finance

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2. Bias (Conflict of Interests in General)

Bias: § 47 Public Services Law 1979 („Beamten-Dienstrechtsgesetz“)A civil servant has to defer his duty and tell his superior so that s/hecan organise a substitute when there are important reasons to believe the civil servant could be biased.

Different kinds of bias: Code of Conduct of Ministry of the Interior Bias and private conflict of interests: personal relationships Bias discovered during an official act Avoiding bias: NOT TO BE ACCEPTED:

invitations for snacks even cheap pens showing a company name

Bias and secondary employment: When official act touches the sphere

of the legally accepted secondary employment

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2. Bias (Conflict of Interests in General)

Bias: § 7 General Public Administration Procedural Law 1991 („Allgemeines Verwaltungsverfahrensgesetz“) A civil servant has to defer his duty and tell his superior so that s/hecan organise a substitute when there are important reasons tobelieve the civil servant could be biased.

Different kinds of bias: Code of Conduct of City of Vienna Bias when relatives are involved Bias when people are involved that you have the custody of (you) Bias when you have been the authorized representative Bias when there are other important reasons to believe you could

be biased (friendship, thankfulness, hostility, rivalry) Bias when your are in appeal procedure in cases you were

involved in the issuing of a decision at a lower level of jurisdiction

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2. Bias (Conflict of Interests in General)

Bias related to GIFTS:

§ 305 para. 1 Criminal Law: Acceptance of Advantages

A public official who accepts an advantage for undertaking (or not

undertaking) an official act can be subject to 2 years of imprisonment.

§ 59 para. 1 Public Services Law 1979 The civil servant must not ask, accept or let him/herself promise

gifts or other advantages. Minor customary advantages are permitted. Gifts of honour can be accepted. The civil servant has to inform

his superiors. If the acceptance of the gift is denied by them, the civil servant has to return the gift.

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2. Bias (Conflict of Interests in General)

Bias related to GIFTS:

Code of Conduct of the Ministry of the Interior

It is always better NOT to accept a gift. Minor customary advantages:

Money can NEVER be accepted. Many small advantages over a longer

period CANNOT be accepted. Attention with invitations for lunch/dinner Permitted are small gifts:

bunch of flowers, pen, calender

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3. Secondary Employment

§ 56 Public Services Law 1979/2010 („Beamten-Dienstrechtsgesetz“) Para. 1: Secondary employment is every occupation which the

civil servant holds outside of his public employment Para. 2: The civil servant must not exercise a secondary

employment that hinders his public position, assumes his bias or endangers other important interests of his public position.

Para. 3: The civil servant must report to his superiors every secondary employment (in which he receives noteworthy income) and every change to it.

Para. 4: The civil servant whose regular weekly work has been reduced or works part-time or is on maternity leave may only have a paid secondary employment, if it is allowed by the superiors.

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3. Secondary Employment

§ 56 Public Services Law 1979/2010 („Beamten-Dienstrechtsgesetz“) Para. 5: A function in the Board, Management or other organ in a

company (for profit) has to be reported by the civil servant. Para. 6: The holding of an occupation mentioned in para. 2 and 5

has to be denied immediately by the authority in writing. Para. 7: The responsible minister can regulate by ordinance,

which secondary employments are definitely prohibited for the reasons mentioned in para. 2.

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3. Secondary Employment

Code of Conduct of the Ministry of the Interior:

Regulations: Secondary employment

should be the exception! Overlaps with

Acceptance of gifts Bias and employment Official secrecy

Secondary employment and Work in associations Political functions Competition

How to act correctly after malpractice

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3. Secondary EmploymentChart to decide whether secondary employment is allowed or not:

Source: Professional Ethics: Careful Exertion of Influence, Ministry of Finance

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3. Secondary Employment

Official parliamentary website

Members of Parliament must declare

secondary employment: Position/profession and Employer of MoPs Disclosure is mandatory

when earning more than € 1142/year

while there is, however, no graduation in income shown.

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4. Cooling Off-Period –

Leaving Public Administration

§ 20 para. 3a + 3b, 61 para. 3 + 4 Public Services Law 1979/2012

§ 30a Law of Public Services (for contracted employees) A civil servant may not work at certain companies for six months

after leaving public administration (for retirement or other reasons) When the decisions in his public employment for the last 12 months

had considerable influence and When the holding of this new occupation could affect public trust of

his former public position Exception:

Companies that are subject to the supervision of the Court of Audit His professional advancement should not be jeopardized

Sanction: Penalty of the triple of her/his salary of the last month

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Questions?

Legal Regime, Good Practices and Procedures for Ascertainment of

Conflict of Interests in Austria

Contact details:Michael Ocvirk

Department BAK/2Michael.Ocvirk@bak.gv.at