as Financial Criminal Act) are predicate offence to ML under the condition that a court is competent 
for taking action against it, i.e. if the perpetrator has committed the misdemeanour with premeditation 
and the relevant value of the evasion or the smuggling exceeds EUR 50'000 ($ 53 para 1 and 2 
FinStrG).? Once these conditions are met, the court may sentence the offender to a fine and addition- 
ally to imprisonment of a period of time up to two years.” The maximum sentence being of more than 
one year, it appears that the definition according to Art. 3 point (4) (f) of the 4^ AMLD seems to be 
  
met. 
The law is mute on the question whether a predicate offence can be committed in a foreign country, 
but there is consensus in the Austrian academia that this is possible. Court decisions could not be 
found on this question. Academics and practitioners have established that proceeds of a foreign of- 
fence can be the object of ML in Austria, if the foreign offence would be a predicate offence in Austria 
too, and the foreign offence would be punished according to the law at the scene of the crime (lex loci 
delicti), while it is not necessary that the foreign offence is a predicate offence to ML in the country 
where it has been committed.?? 
If the predicate offence was committed abroad, Austrian law would request that this act was also pun- 
ished where it was committed, but to the contrary of German and Swiss law?, there is no explicit legal 
norm stipulating this in Austrian law. 
On the other hand, it is possible that a foreign offence is a felony and predicate offence to ML in the 
country where it has been committed but no offence at all in Austria, hence the proceeds of that for- 
eign offence cannot fall in scope of $ 165 Criminal Code of Austria, which will be explained below in 
chapter 3.3. In spite of this, the conditions in point 5 of the interpretive note to FATF recommendation 
  
3 seem to be met by the Austrian Criminal Code. 
  
# The latest version of the FinStrG can be found (in German only) at 
https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10003898, ac- 
  
cessed online on April 3, 2016. For the sake of shortness of this text, the German version of $ 35 can be found in 
Annex C below. 
? The legal construction of the offences being very complicated, the list of potential sanctions available from 
https://www.bmf.gv.at/steuern/fristen-verfahren/fsv-strafhoehe.html, accessed on April 3, 2016, is very helpful 
and can be found in German in Annex D below. 
? As explained by Mag. Rainer Brandl, attorney-at-law with the law firm LeitnerLeitner, Linz/Wien/Zürich, 
during his presentation entitled "Steuerdelikte als Vortaten für Geldwäsche in Österreich” given at the 12” 
AML/CFT Conference in Zürich entitled ^ Aktuelle Entwicklungen in der Bekámpfung der Geldwáscherei und 
der Terrorismusfinanzierung”, organised by Kunz Compliance, Bern, www.compliance.ch. 
23 8 261 para 8 German Criminal Code, Art. 305” number 3 Swiss Criminal Code. 
19