Breach of trust (Section 153 ACC) is one of the most important white collar crimes in Austria. It frequently affects managing directors, board members, association officers, or other decision-makers. The accusation often arises not from classic crimes like theft but from business decisions that are later judged critically.
Not only defendants but also potential victims – such as shareholders, companies, or associations – face significant risks. While defendants must defend themselves against serious criminal charges, victims are concerned with detecting, securing, and recovering financial losses.
What does breach of trust mean?
Breach of trust occurs when someone abuses their authority to manage another person’s assets, thereby causing financial damage.
2. Financial loss – a concrete loss occurs.
3. Intent – the person knowingly misuses their authority and accepts the risk of financial harm.
- Abuse of authority – the person has legal authority to dispose of another’s assets but the action conflicts with the interests of the asset owner.
- Vermögensnachteil – dem Vollmachtgeber entsteht ein Vermögensschaden.
- Intent – the person knowingly misuses their authority and accepts the risk of financial harm.
Practical examples:
A managing director uses company funds for private expenses.
– An managing director awards overpriced contracts to acquaintances.
– A board member approves a risky investment that later fails.
The Business Judgment Rule
Not every wrong decision results in criminal liability. This is where the Business Judgment Rule applies:
– The decision is based on adequate information.
– It is made in the best interests of the company.
– It is taken without self-interest.
If these conditions are met, the decision remains within the scope of entrepreneurial freedom – even if it later results in a loss (§ 25 para 1a GmbHG; § 84 para 1a AktG).
Important: We recommend documenting all significant business decisions in detail. A clear and comprehensible record, or an understandable explanation of the reasons behind a decision, can make a decisive difference in a criminal proceeding
Sanctions
The penalties depend on the amount of damage:
– Up to 6 months imprisonment or a fine if the loss does not exceed €5,000.
Up to 3 years imprisonment for losses exceeding €5,000.
– Up to 10 years imprisonment for losses exceeding €300,000.
Conclusion & next steps
Breach of trust under Section 153 ACC is a complex offense with severe risks for both defendants and victims alike.
If you have received a summons or suspect breach of trust in your company, we recommend to seek legal assistance immediately. Mag. Markus Weisser provides experienced support in both defense against allegations and the assertion of victims’ rights and claims for damages.
As an experienced attorney in white-collar crime law, we will review your individual situation discreetly and competently. Schedule a confidential initial consultation now.
Markus Weisser
Attorney at law
Mag. Markus Weisser has been practicing criminal law for several years. His work covers a broad range of focus areas, and he also regularly gives lectures on various legal topics.
FAQ
I have been summoned for questioning as a defendant – what should I do?
Engage a specialized defense lawyer before the hearing. The hearing can be postponed until defense counsel has obtained access to the investigation files. Only once the full scope of the allegations is clear should a written statement be submitted.
Am I criminally liable if an investment fails?
No. The decisive factor is whether the decision was carefully prepared, fact-based, and free from conflicts of interest. If a project fails despite due diligence, the Business Judgment Rule applies – and no criminal liability arises.
Should I expect a house search if am suspected of breach of trust?
Yes. In cases of suspected breach of trust, house searches are common – both at private and business premises. Investigators often seize data carriers, computers, or physical records.
I suspect breach of trust in my company – what should I do as a victim?
Act quickly: document irregularities, secure relevant records, and seek legal advice. Together with your lawyer, you can assess whether filing a criminal complaint is advisable and whether you should join the proceedings as a private claimant to recover damages.
How important is documentation in cases of breach of trust?
Very important: For defendants, thorough documentation of decision-making processes can help counter allegations. For victims, careful collection of evidence is essential to support claims and strengthen the case.
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