Opinion of the Advocate General — ECLI:EU:C:2025:532
Date: 2025-07-03
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Austria

Anonymised version 
Translation C-291/24 – 1 
Case C-291/24 
Request for a preliminary ruling 
Date lodged: 
25 April 2024 
Referring court: 
Bundesverwaltungsgericht (Austria) 
Date of the decision to refer: 
25 April 2024 
Appellants: 
Steiermärkische Bank und Sparkassen AG 
KL 
TR 
Defendant authority: 
Österreichische Finanzmarktaufsichtsbehörde (FMA) 
  
BVwG 
Bundesverwaltungsgericht 
(Federal Administrative Court) 
Republic of Austria  
Postal address: 
Erdbergstraße 192 – 196 
1030 Vienna 
Tel: +43 1 601 49 – 0 Fax: +43 1 531 09 – 
153357/153364  
E-Mail: einlaufstelle@bvwg.gv.at 
www.bvwg.gv.at 
… 
Reference: 
W148 2289668-1/5Z 
(please quote in all 
correspondence) 
 
EN 
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ORDER 
The Bundesverwaltungsgericht (Federal Administrative Court, Austria), through 
… [names of judges], has made the following order in respect of the appeals of 
2 April 2024 by 1. STEIERMÄRKISCHEN BANK UND SPARKASSE AG, 2. 
KL and 3. TR, all represented by […] [law firm] against the administrative penal 
order (Straferkenntnis) of the Finanzmarktaufsichtsbehörde (Financial Market 
Authority) of 29 February 2024, ref. FMA-KL23 5314/0001- LAW/2021, in 
administrative criminal proceedings under the Finanzmarkt-Geldwäschegesetz 
(Law on financial markets anti-money laundering): 
… 
The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
Does secondary EU law (in particular Article 60(5) and (6) in conjunction 
with Article 58(1) to (3) and Article 59(1) of Directive (EU) 2015/849 of the 
European Parliament and of the Council of 20 May 2015 on the prevention of 
the use of the financial system for the purposes of money laundering or 
terrorist financing, amending Regulation (EU) No 648/2012 of the European 
Parliament and of the Council, and repealing Directive 2005/60/EC of the 
European Parliament and of the Council and Commission Directive 
2006/70/EC (OJ 2015 L 141, p. 73), as last amended by Directive (EU) 
2019/2177 of the European Parliament and of the Council of 18 December 
2019, in addition to the general legal principles of the European Union (in 
particular effet utile) 
preclude the provisions of Paragraph 35(1) to (3) (on the criminal liability of 
legal persons) and Paragraph 36 (extension of the limitation period) of the 
Austrian Finanzmarkt-Geldwäschegesetz (Law on financial markets anti-
money laundering, FM-GwG), 
which, in conjunction with the interpretation of those provisions by the 
Austrian Verwaltungsgerichtshof (Supreme Administrative Court), require 
that, in order to punish a legal person, it is imperative that an official 
representative or another natural person who has acted for the legal person 
has previously been given the formal party status of defendant (while strictly 
safeguarding all party rights) and, in addition, it is imperative that the 
operative part of the administrative penal order against the legal person 
determines that the natural person specifically named therein (or the official 
representative) committed an offence, acted unlawfully and is culpable in 
order to attribute that conduct to the legal person as a further step, the 
limitation period for bringing proceedings being within a period of three 
years of the end of the offence and the limitation period for the punishment 
of offences within a period of five years? 
… [Procedural law matters] 
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Grounds 
… 
Subject matter of the main proceedings 
1. Referring court: 
… [Repetition of the information regarding the court] 
2. Parties to the proceedings: 
… 
3. These proceedings have arisen following an administrative penal order of 
the Austrian Finanzmarktaufsichtsbehörde (Financial Market Authority, ‘FMA’ or 
‘defendant authority’) of 29 February 2014, ref. FMA-KL23 5314.100/0001-
LAW/2021, by which it imposed an administrative criminal penalty on a legal 
person (the appellant company) under Paragraph 35(1) to (3) of the FM-GwG, on 
the ground that it is responsible for a breach of due diligence obligations under 
money laundering law (Paragraph 23(1) in conjunction with Paragraph 6(1)(2) of 
the FM-GwG) from 15 September 2017 to 11 October 2019. The administrative 
penal order is based in that regard on Paragraph 35 of the FM-GwG, in 
accordance with which legal persons may be penalised. 
4. Since the criminal liability of legal persons is extraneous to Austrian 
administrative criminal law, the punishment of that legal person under 
Paragraph 35(1) and (2) of the FM-GwG in conjunction with the interpretation by 
the Austrian Supreme Administrative Court is lawful only if the (objective) 
offending, unlawful and (subjective) culpable act by the natural person who must 
be named specifically (or an official representative) ‘referred to in 
Paragraph 34(1) to (3)’ (of the FM-GwG) has been established beforehand and 
subsequently attributed to the legal person. In that regard it is necessary, first, that 
the natural person whose actions are to be attributed to the legal person has 
previously been involved in those proceedings and treated as a defendant (party 
with all rights) and not merely as a witness and, secondly, that that offending, 
unlawful and culpable act by the identified official representative (the identified 
natural person) is not only established against the legal person in the operative 
part of the administrative penal order, but also, thirdly, that it is also attributed to 
the legal person in the operative part. This also has the consequence – regularly – 
that errors in the proceedings against the official representative (or natural person) 
who acted on behalf of the legal person, such as, for example, the fact that the 
relevant person was questioned only as a witness (under the obligation to tell the 
truth), result in the proceedings against the legal person being discontinued (or the 
case being closed). The same applies by operation of law where the proceedings 
have not been brought by the FMA within the limitation period for bringing 
proceedings and if no final decision could be made within the limitation period for 
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criminal liability (for example, final decision of the Federal Administrative Court 
as the appeal court). 
5. For that reason, two other natural persons (‘persons to whom the offence is 
attributed’) are also parties (defendants) to the proceedings, since, in accordance 
with the procedure set out above, it is necessary that, because of their party rights 
as defendants, they are also the addressees of the administrative penal order 
against the legal person and therefore also have a right to appeal, although the 
defendant authority has never sought to punish those natural persons. 
6. Those requirements regarding the ‘persons to whom the offence is 
attributed’ in the proceedings against the legal person or the operative part of the 
administrative penal order, as well as the limitation period for the punishment of 
offences (without interruption as a result of the present preliminary ruling 
proceedings) that will soon apply by operation of law are the reason for referring 
the matter to the Court of Justice of the European Union. 
Relevant legislation 
7. The relevant provisions of Directive (EU) 2015/849 (‘4th Anti-Money 
Laundering Directive’), including headings, read as follows: 
‘[Recital] 59: The importance of combating money laundering and terrorist 
financing should result in Member States laying down effective, 
proportionate and dissuasive administrative sanctions and measures in 
national law for failure to respect the national provisions transposing this 
Directive. … 
Section 4 
Sanctions 
Article 58 
1. Member States shall ensure that obliged entities can be held liable for 
breaches of national provisions transposing this Directive in accordance 
with this Article and Articles 59 to 61. Any resulting sanction or measure 
shall be effective, proportionate and dissuasive. 
2. Without prejudice to the right of Member States to provide for and 
impose criminal sanctions, Member States shall lay down rules on 
administrative sanctions and measures and ensure that their competent 
authorities may impose such sanctions and measures with respect to 
breaches of the national provisions transposing this Directive, and shall 
ensure that they are applied. 
… 
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3. Member States shall ensure that where obligations apply to legal 
persons in the event of a breach of national provisions transposing this 
Directive, sanctions and measures can be applied to the members of the 
management body and to other natural persons who under national law are 
responsible for the breach. 
Article 59 
1. Member States shall ensure that this Article applies at least to 
breaches on the part of obliged entities that are serious, repeated, 
systematic, or a combination thereof, of the requirements laid down in: 
(a) Articles 10 to 24 (customer due diligence); 
(b) Articles 33, 34 and 35 (suspicious transaction reporting); 
(c) Article 40 (record-keeping); and 
(d) Articles 45 and 46 (internal controls). 
… 
Article [60] 
… 
5. Member States shall ensure that legal persons can be held liable for 
the breaches referred to in Article 59(1) committed for their benefit by any 
person, acting individually or as part of an organ of that legal person, and 
having a leading position within the legal person based on any of the 
following: 
(a) power to represent the legal person, 
(b) authority to take decisions on behalf of the legal person; or 
(c) authority to exercise control within the legal person. 
6. Member States shall also ensure that legal persons can be held liable 
where the lack of supervision or control by a person referred to in 
paragraph 5 of this Article has made it possible to commit one of the 
breaches referred to in Article 59(1) for the benefit of that legal person by a 
person under its authority. 
….’ 
8. Paragraphs 34 to 36 of the Law on financial markets anti-money laundering 
(‘the FM-GwG’), in the version in BGBl. I No 118/2016 (in respect of 
Paragraph 34(1) to (3) … and in the version in BGBl. I No 17/2018 … in respect 
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of Paragraph 35(1) to (2); … [explanation as to why that particular version is 
applicable in the present case], including headings, read as follows: 
‘Section 8 
Penal provisions and publications 
Breaches of obligations 
Paragraph 34. (1) Any person who, as the person responsible (Paragraph 9 
of the VStG) for an obliged entity, infringes obligations under 
… 
2. Paragraphs 5 to 12 (customer due diligence) …, 
… 
8. Paragraph 23(1) to (3) or (6) (internal organisation), 
… 
is committing an administrative offence and shall be punished by a fine 
imposed by the FMA of up to EUR 150 000. 
(2) Where the breaches of obligations referred to in subparagraph 1(1) … 
are serious, repeated, systematic or a combination thereof, the amount of the 
fine shall be up to EUR 5 000 000 or up to twice the benefit derived from the 
breach of obligation where that benefit can be determined. 
(3) Any person who, as the person responsible (Paragraph 9 of the VStG) 
for an obliged entity 
1. fails repeatedly or systematically to include the required information 
on the payer or the payee, in breach of Articles 4 to 6 of Regulation (EU) 
2015/847, 
2. does not ensure that records are retained in accordance with 
Article 16 of Regulation (EU) 2015/847, where this constitutes a repeated, 
systematic and serious failure, 
3. fails to implement effective risk-based procedures, in breach of 
Articles 8 or 12 or Regulation (EU) 2015/847, or 
4. where the obliged entity is an intermediary payment service provider 
pursuant to Article 3(5), seriously fails to comply with Article 11 or 12 of 
Regulation (EU) 2015/847, 
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is committing an administrative offence and shall be punished by a fine 
imposed by the FMA of up to EUR 5 000 000 or up to twice the benefit 
derived from the breach of obligation where that benefit can be determined. 
…’ 
‘Criminal liability of legal persons 
Paragraph 35. (1) The FMA may impose fines on legal persons where a 
breach of obligations referred to in Paragraph 34(1) to (3) is committed for 
their benefit by any person, acting individually or as part of an organ of that 
legal person, and having a leading position within the legal person based on 
any of the following: 
1. power to represent the legal person; 
2. authority to take decisions on behalf of the legal person; or 
3. authority to exercise control within the legal person. 
(2) Legal persons may also be held liable for breaches of obligations 
referred to in Paragraph 34(1) to (3) where the lack of supervision or 
control by a person referred to in subparagraph 1 has made it possible to 
commit one of the breaches of obligations referred to in Paragraph 34(1) to 
(3) for the benefit of that legal person by a person acting on its behalf. 
….’ 
‘Extension of the limitation period 
Paragraph 36. In the case of administrative offences under this Federal 
Law, instead of the limitation period for bringing proceedings 
(Paragraph 31(1) of the VStG), a period of three years shall apply. In such 
cases, the period of limitation for the punishment of offences 
(Paragraph 31(2) of the VStG) shall be five years.’ 
The two questions referred for a preliminary ruling 
9. Imposing a penalty on a legal person was previously extraneous to Austrian 
administrative criminal law (‘the VStG’). Instead, provision was made, under 
Paragraph 9 of the VStG, for the punishment of a natural person to whom the 
misconduct was attributed. The natural person who had a certain responsibility 
(position or assignment) within the legal person was liable for any misconduct 
found. 
By the introduction of the provisions which are relevant to the present case in 
Paragraph 35(1) to (3) of the FM-GwG (or previously Paragraph 99d of the old 
version of the Bankwesengesetz (Law on Banking) in the version in BGBl. I 
No 184/2013 as the previously applicable provision with identical wording), the 
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punishment of legal persons was incorporated into Austrian administrative 
criminal law. 
10. In essence, Paragraph 35(1) and (2) of the FM-GwG transposes the 
combined provisions of Article 59 and Article 60(5) and (6) of Directive (EU) 
2015/849 (see the explanations in the ministerial draft in relation to Paragraph 35 
of the FM-GwG reproduced in paragraph 12 below). The text of the directive 
(Article 60(5)) has been transposed, but with a significant addition that can be 
found in Paragraph 35(1) of the FM-GwG, which introduced the additional 
condition for the punishment of legal persons, (literally) that ‘a breach of 
obligations referred to in Paragraph 34(1) to (3)’ is committed for their benefit 
by any person. That restrictive wording is not found in the text of the directive and 
was inserted by the Austrian legislature (see the wording of Article 60(5) of the 
directive in paragraph 7 above). In Paragraph 34(1) to (3) of the FM-GwG, 
however, the punishment of a natural person is governed by the Austrian system 
set out in Paragraph 9 of the VStG, which is not included in Article 60(5) and (6) 
of the directive; that article merely provides that a natural person acts for the 
benefit of a legal person and has a leading position within it based on a certain 
authority; furthermore, other natural persons may also incur liability for the legal 
person if certain conditions are met (Article 60(6) and (5) of the directive). 
However, a subjective link for the purposes of (administrative) criminal law to an 
identified natural person is not provided for. 
11. From the wording ‘a breach of obligations referred to in Paragraph 34(1) to 
(3)’ in Paragraph 35(1) of the FM-GwG and the reference to Paragraph 9 of the 
VStG in Paragraph 34(1) of the FM-GwG, the case-law of the 
Verwaltungsgerichtshof (Supreme Administrative Court, Austria, ‘the VwGH’) 
has deduced the following (additional) requirements for the criminal liability of 
legal persons under Paragraph 35 of the FM-GwG. It is noted, as already briefly 
indicated above, that although that case-law was developed in relation to 
Paragraph 99d of the old version of the Law on Banking …, it nevertheless 
continues to be applied in relation to Paragraph 35 of the FM-GwG. 
12. Starting with the judgment of the VwGH of 29 March 2019, Ro 
2018/02/0023 (see also VwGH, 13 December 2019, Ro 2019/02/0011, and VwGH 
8 September 2022, Ro 2022/02/0017), the settled case-law contains the following 
considerations (partial verbatim reproduction with paragraph numbers): 
… 16  On that basis, in the appeal on a point of law – because of the 
connection with EU law from the point of view of a fair trial under 
Article 47(2) of the Charter of Fundamental Rights of the European Union, 
on which legal persons may also rely (see, to that effect, Jarras, Charta der 
Grundrechte der Europäischen Union, Article 47, paragraph 12) – further 
questions are also raised by the Supreme Administrative Court, especially 
since Paragraph 99d of the BWG … is not accompanied by provisions of 
procedural law. 
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17 There is also no specific procedural law for administrative criminal 
proceedings against legal persons and therefore – in so far as it applies to 
legal persons – recourse must be had to … the VStG …, which in turn refers 
to parts of the AVG [Allgemeine Verwaltungsverfahrensgesetz (Law on 
General Administrative Procedure)] (Paragraph 24 of the VStG) and which 
is also applicable (in the alternative) in administrative criminal proceedings 
(Paragraph 38 of the VwGVG). 
18 The starting point for administrative criminal proceedings is 
Paragraph 25 of the VStG, in accordance with which administrative 
offences (with the exception of private prosecution cases) must be pursued 
ex officio (principle of ex proprio motu). The authority is therefore, in 
principle, obliged to initiate administrative criminal proceedings and to 
impose a penalty. 
… 
21 Turning to the procedural safeguards provided for in Article 47 of the 
Charter of Fundamental Rights, which are relevant to the present case 
because of the reference to EU law, it is logical that the legal person must 
be regarded as the defendant under Paragraph 32 of the VStG where it is 
suspected of being responsible for an administrative offence and the 
authority brings legal proceedings against it. It is then also a party within 
the meaning of the AVG. 
22 Where the legal person is the defendant in administrative criminal 
proceedings (Paragraph 32 of the VStG), it has all the rights associated with 
that status of a party. For example, the defendant must be granted the right 
to be heard (Paragraph 40 of the VStG) and does not have to answer 
questions put to him (Paragraph 33(2) of the VStG). The defendant has 
access to a court (administrative court), which must in principle hold a 
public hearing (Paragraph 44 of the VwGVG), in which the defendant has 
the right to ask questions and obtain information and may also be 
represented (Paragraph 46 of the VwGVG). In the absence of a minimum 
threshold, the penalty range provided for in Paragraph 99d(3) of the BWG 
also allows for a penalty level appropriate to the individual case …. 
23 In addition, the limitations and exceptions to the principle of ex 
proprio motu, such as those arising from Paragraph 25(3) of the VStG 
(refraining from reporting offences), Paragraph 34 of the VStG (temporary 
refraining from initiating or continuing criminal proceedings) or 
Paragraph 45(1) of the VStG (refraining from initiating or continuing 
criminal proceedings and termination), are also applicable to proceedings 
brought against the legal person as the defendant for its benefit, in so far as 
they are not exclusively tailored to natural persons. 
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24 That procedural status conferred on the legal person meets the 
requirements of the right to a fair trial, and therefore the procedural 
safeguards required by Article 47 of the Charter of Fundamental Rights are 
also afforded to the legal person in proceedings under the VStG …. 
25 The punishment of the legal person under the provision at issue 
presupposes that a natural person (leader) for whom it is responsible has 
committed a criminal offence. The criminal liability of the legal person 
under Paragraph 99(1) and (2) of the BWG is based on the accusation that 
the leaders named therein have ‘breached obligations’ referred to therein 
(subparagraph 1) or have enabled an ‘offence by an employee’ through a 
lack of control or supervision (subparagraph 2). 
26 … 
27 … 
28 … [redundant text] 
29 Since the legal person cannot act itself, its criminal liability pursuant 
to Paragraph 99d of the BWG is a consequence of the offending, unlawful 
and culpable conduct of a leader. Accordingly, a precise description of the 
offence committed by the natural person is necessary in order for the legal 
proceedings brought against the legal person to be effective. Legal 
proceedings in accordance with Paragraphs 31 and 32 of the VStG must 
concern a specific administrative offence …. Where such an accusation is 
made against the legal person, it also contains the accusation against the 
natural person mentioned therein, because the criminal liability of the legal 
person is dependent on the offence committed by the natural person for 
which it is responsible [emphasis added]. 
30 However, if a named leader or a leader who is clearly identified from 
the other description according to individual criteria (see 
Lewisch/Fister/Weilguni, Verwaltungsstrafgesetz 2, paragraph 13 on 
Paragraph 32) is accused of one of the offences mentioned in legal 
proceedings against the legal person …, the person responsible under 
Paragraph 9 of the VStG is suspected of that administrative offence and is 
therefore the defendant, from that point in time, pursuant to 
Paragraph 32(1) of the VStG …. In addition to the specific status as a party 
in administrative criminal proceedings, that factor is also relevant to the 
limitation period for bringing proceedings, both for the legal person and the 
natural person (Paragraph 31(1) of the VStG). 
31 On this occasion, it should be noted that it is not sufficient – for the 
legal proceedings or the punishment – for the determination of the accused 
person, in so far as they are not already named in the operative part, for 
reference to be made to documents not attached to the settlement (such as 
the ‘company register’ in the administrative penal order in the present 
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case); as demonstrated above, merely being able to identify the person is not 
sufficient [emphasis added]. 
32 … [redundant text] 
33 With regard to the question of admissibility raised at the outset, this 
means that the proceedings against the natural person do not have to be 
conducted and concluded as a matter of priority and do not require a guilty 
verdict against the natural person in order to be able to also penalise the 
legal person. Rather, the decisive factor for the punishment of the legal 
person is that findings necessary for the assessment of criminal, unlawful 
and wrongful conduct which also satisfies any additional conditions for 
criminal liability are made and that all necessary elements for the natural 
person to be penalised are included in the decision (Paragraph 44a of the 
VStG), with the addition that the conduct of the natural person is attributed 
to the legal person. [emphasis added]. It is irrelevant whether and, as the 
case may be, against which natural person – in addition – administrative 
criminal proceedings are being or have been brought. 
34 In the main proceedings, in the administrative penal order of 
13 September 2016, the FMA relied on the combined provisions of 
Paragraph 98(5a)(3) of the BWG and Paragraph 99d of the BWG, which the 
administrative court also reproduced in the judgment under appeal. It is 
apparent from the additional reasoning in the judgment under appeal that 
the administrative court … wanted its legal opinion to also apply to 
Paragraphs 34 and 35 of the Law on financial markets anti-money 
laundering (FM-GwG), which have been in force since 1 January 2017 and 
have replaced the corresponding provisions in the BWG. 
… 
36 The explanatory notes to the original version BGBl. I No 118/2016 
read, in extract, as follows: 
‘… 
Paragraph 35: 
Subparagraphs 1 and 2 transpose the combined provisions of Article 59 and 
Article 60(5) and (6) of Directive (EU) 2015/849. In accordance with 
recital 59, national law must provide for effective, proportionate and 
dissuasive administrative sanctions and measures. An essential element in 
this respect is the direct liability and punishment of legal persons in addition 
to the natural persons responsible (Paragraph 9 of the VStG). The 
possibility of sanctions therefore arises where persons who perform certain 
“key functions” in legal persons fail to comply with the statutory obligations 
under this law which are directed at legal persons as persons subject 
thereto’ 
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… 
38 … The particularly high penalties prescribed by EU law in financial 
market supervisory law compared to other administrative criminal law 
justify the granting of a broader discretion – compared with 
Paragraph 45(1)(4) of the VStG – to refrain from imposing penalties for 
minor offences. Subparagraph 6(1) sets out the conditions for concentrating 
resources on the prosecution of serious offences in order to implement 
rapidly and consistently the imposition of effective, proportionate and 
dissuasive sanctions as required under EU law. The legislation therefore 
also contributes to procedural economy and the public interest in the most 
expedient, rapid, simple and cost-saving enforcement possible by the FMA; 
there is therefore no individual entitlement to a waiver of the penalty. The 
material scope of subparagraph 6(1) has been chosen in such a way as to 
cover, in addition to the persons responsible pursuant to Paragraph 9 of the 
VStG, all natural and legal persons subject to the supervisory law.’ 
39 … 
13. The Federal Administrative Court has doubts as to the admissibility of the 
conditions described above for the criminal liability of the legal person (under 
Paragraph 35(1) and (2) of the FM-GwG) if, in addition to Article 60(5) of the 4th 
Anti-Money Laundering Directive, the criteria described or reproduced verbatim 
above are required for the legal person to be held criminally liable. The referring 
administrative court is doubtful as to whether the procedure provided for under 
‘Paragraph 34(1) to (3)’ (for the criminal liability of the natural person) restricts 
the (substantive) provision of Article 60(5) of the 4th Anti-Money Laundering 
Directive to such an extent that an additional threshold is introduced, which is not 
provided for in EU law. This is clear from the quotation from the case-law of the 
VwGH set out above (paragraph 23), which reads ‘because the criminal liability 
of the legal person is dependent on the offence committed by the natural person 
for which it is responsible’, even if no separate, prior administrative criminal 
proceedings are required by the VwGH. Such ‘dependency’ is, in the view of the 
referring court, regulated far less restrictively in the text of the directive 
(Article 60(5) and (6)) (‘committed for their benefit by any person, acting 
individually or as part of an organ …’) and also leads to a different outcome; … 
… [repetition] 
The concerns raised by the referring administrative court arise, in particular, in the 
light of the fact that the administrative ‘sanctions or measures’ provided for in the 
4th Anti-Money Laundering Directive should be ‘effective, proportionate and 
dissuasive’ (see recital 59 and Article 58(1) of the directive). This is also 
contradicted by the fact that the proceedings often prove to be quite complex and 
the underlying circumstances are not transparent and therefore the authority is not 
aware of them, nevertheless the appeal proceedings before the administrative 
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court must be concluded within a period of five years of the offence being 
committed, failing which they will be time-barred by operation of law. 
14. In the Federal Administrative Court’s view, the criminal liability provided 
for in Article 60(5) and (6) of the 4th Anti-Money Laundering Directive 
(administrative criminal liability) is an autonomous provision of EU law. The 
Austrian rules laid down in Paragraph 35(1) of the FM-GwG (and the case-law 
relating thereto) and Paragraph 36 of the FM-GwG are not merely a (domestic and 
unobjectionable) procedural arrangement, but in fact establish additional 
requirements for the criminal liability of legal persons under the FM-GwG, which 
restrict substantive EU law and undermine uniformity within the European Union 
in the application of that provision and infringe the principle of effectiveness. 
Respecting the primacy of EU law means that it must be interpreted, so far as 
possible, in the light of the wording and the purpose of the transposed directive 
(see judgment of 24 January 2012, Dominguez, C-282/10, paragraph 24). 
15. In addition to the concerns described above, which militate against the 
national legislation laid down in Paragraph 35(1) to (3) and Paragraph 36 of the 
FM-GwG, reference is had to the recent case-law of the European Court of Justice 
on a similar legal concept of the criminal liability of legal persons in EU data 
protection law. In its judgment of 5 December 2023 (Case C-[807]/21, [Deutsche] 
Wohnen, paragraph 77), the Court of Justice held (with reference to the case-law 
on EU antitrust law) that ‘it is not necessary for there to have been action by or 
even knowledge on the part of the management body of that legal person’ in order 
for the legal person to incur liability. In the operative part of that judgment, the 
Court of Justice held that Article 58(2) and Article 83(1) to (6) of Regulation (EU) 
2016/679 (GDPR) must be interpreted as precluding national legislation under 
which an administrative fine may be imposed on a legal person in its capacity as 
controller in respect of an infringement referred to in Article 83(4) to (6) only in 
so far as that infringement has previously been attributed to an identified natural 
person (see also the very recent case-law of the VwGH of 1 February 2024, Ra 
2020(04/187). 
16. In the Federal Administrative Court’s view, the case-law of the Court of 
Justice in Case C-807/21 could be transferable to Article 60(5) and (6) of the 4th 
Anti-Money Laundering Directive, without disregarding the legal nature of the 
GDPR. 
17. For all those reasons, the Federal Administrative Court has doubts as to the 
compatibility of Paragraph 35(1) to (3) and Paragraph 36 of the FM-GwG (and 
their interpretation by the national supreme court) with EU law (Article 60(5) and 
(6) of the 4th Anti-Money Laundering Directive) and refers this question to the 
Court of Justice for a preliminary ruling. 
Stay of proceedings 
18. … [details regarding the stay of proceedings] 
REQUEST FOR A PRELIMINARY RULING OF 25. 4. 2024 – CASE C-291/24 
 
14  
Anonymised version 
… Inadmissibility of the appeal on a point of law: 
19. … 
FEDERAL ADMINISTRATIVE COURT 
…, on 25 April 2024 
… 
(Presiding judge) 
… [Procedural law matters]