Austria: Anti-Corruption Compliance In Times Of The COVID-19 Pandemic

I. INTRODUCTION

Fighting corruption is not only an important topic in public discourse in times of crisis. In recent years, prosecution offices and courts have had to deal with an increasing number of different forms of corruption. In times of the corona crisis, in addition to the need for medications and vaccines, the demand for numerous medical products, such as respirators, disposable gloves, protective masks, disinfectants or COVID-19-tests has increased drastically. Involved persons often have to provide and procure large quantities of these products under considerable time pressure. Thomas Stelzer, head of the International Anti-Corruption Academy (IACA) recently stated in this context (translated from German original): "States around the world are suddenly investing an enormous amount of money to support the economy and the health system. This can enable corruption, if sufficient control structures are not created at the same time. [...] The boundaries between legitimate commissions and other 'payments' are often very thin."²

Many legal laypersons are not aware of how narrow this range is. After all, getting a commission can be a normal business process in one case, and a violation of criminal law punishable by several years of imprisonment in the other case.

The actors in the health sector are facing the challenge of providing effective therapies, tests and vaccines for patients within a short time for the COVID-19-virus that has not been known for long and mutations of that virus that have been known for even less time. In this context, there is a considerable risk of facilitation payments, for example to gain preferential access to certain medical services in an overburdened health system. GRECO points out that in times of crisis, this form of corruption (which is commonplace in some states) appears even in states where it is otherwise rare.³

In addition, another potential gateway for corruption is the danger of conflicts of interest and (partly inadmissible forms of) lobbying. Transparency International shows that, for example, during the swine flu pandemic, scientific advisors to the WHO were simultaneously employed by pharmaceutical companies that earned money from the pandemic. In order to avoid conflicts of interest, WHO advisors must therefore now disclose their income and (financial) connections. The fact that the government is granted an extraordinary amount of power in times of crisis, while restricting traditional parliamentary structures, is also cited as a potential threat for corruption and abuse of power.⁴

This article cannot describe all forms of corrupt behavior in the health sector.⁵ In the following, the corruption risks that are currently relevant for the economic sector, and there especially for the health industry, are presented. This concerns payments/commissions on the medical procurement market, sponsoring of hospitals as well as donations and gifts to hospital staff. In addition to the relevant provisions of the Austrian Medicines Law (Arzneimittelgesetz, "AMG"), the Law on Medical Products (Medizinproduktegesetz, "MPG"), the limits of judicial criminal law in accordance with the Criminal Code (Strafgesetzbuch, "StGB") must be followed in particular.

Footnotes

1 Cf. Transparency International Deutschland, Die Corona-Krise - ein Katalysator für Korruption? Positionspapier (June 2020), https://www.transparency.de/fileadmin/Redaktion/Publikationen/2020/Positionspapier_ Korruptionspraevention_Corona_Juni_2020.pdf (last visited Jan. 31, 2021); Daniel Bischof, Corona-Krise als Nährboden für Korruption, interview with Thomas Stelzer, Wiener Zeitung, (Apr. 27, 2020), https://www.wienerzeitung.at/nachrichten/politik/oesterreich/2058429-Corona-Krise-als- Naehrboden-fuer-Korruption.html (last visited Jan. 31, 2021); GRECO, Corruption Risks and Useful Legal References in the context of COVID-19 (Apr. 15, 2020), https://rm.coe.int/corruption-risks-and-useful-legal- references-in-the-context-of-covid-1/16809e33e1 (last visited Jan. 31, 2021).

2 Daniel Bischof, Corona-Krise als Nährboden für Korruption, interview with Thomas Stelzer, Wiener Zeitung, (Apr. 27, 2020), https://www.wienerzeitung.at/nachrichten/politik/oesterreich/2058429-Corona-Krise-als-Naehrboden-fuer-Korruption.html (last visited Jan. 31, 2021).

3 GRECO, Corruption Risks and Useful Legal References in the context of COVID-19, 3, (Apr. 15, 2020), https://rm.coe.int/corruptionrisks- and-useful-legal-references-in-the-context-of-covid-1/16809e33e1 (last visited Jan. 31, 2021).

4 Transparency International Deutschland, Die Corona-Krise - ein Katalysator für Korruption? Positionspapier, 2, (June 2020), https://www.transparency.de/fileadmin/Redaktion/Publikationen/2020/Positionspapier_Korruptionspraevention_Corona_ Juni_2020.pdf (last visited Jan. 31, 2021).

5 For an in-depth analysis of the topic, cf. Elias Schönborn: Korruption im Gesundheitswesen, 45 et seq. (2020).

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