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Misuse of a subsidy under section 153b StGB: use for a different purpose, distinction from fraud and penalty range

Misuse of a subsidy under section 153b StGB: use for a different purpose, the distinction from subsidy fraud under section 146 StGB and the graduated penalty range.

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1 July 2026 · Mag. Christopher Angerer, Rechtsanwalt

Public subsidies are tied to a purpose: they are meant to support a particular activity, investment or function. If the money is used differently or the application is already made with false statements, the charge of a criminal offence quickly arises. The law clearly distinguishes between two cases here.

This post explains from a legal perspective what the misuse of a subsidy under section 153b StGB is, how it differs from subsidy fraud under section 146 StGB and how the penalty range is graduated according to the amount of the subsidy. This is general information, not advice in an individual case.

What is your situation regarding the subsidy?

Four starting situations, one clear next step.

Whether a use for a different purpose, an accusation of false statements or an announced audit: choose the constellation that applies to you and you will receive an initial assessment together with the next concrete step.

Already know you want to send an enquiry? Go straight to the contact form.

01 Question 1

What is your situation?

Whether misuse of a subsidy or subsidy fraud depends on when the deception took place. Choose the situation that applies to you and you will receive an initial assessment together with the next concrete step.

All paths at a glance

Overview of all answers.

01

Use for a different purpose: section 153b StGB comes into consideration, not fraud.

Anyone who uses a lawfully granted subsidy for a purpose other than the one approved falls under the misuse of a subsidy under section 153b StGB. What is decisive is that the subsidy was first awarded rightfully and is only afterwards used for a different purpose. From a legal perspective this distinction is central, because it decides on the applicable offence and the penalty range.

The amount of the subsidy concerned is important, because the penalty range is graduated. An early legal examination clarifies whether a use for a different purpose exists at all and what consequences are looming.

In depth: misuse or fraud →
02

Deception in the application: this concerns subsidy fraud under section 146 StGB.

If the subsidy is obtained by false statements in the first place, there is no misuse of a subsidy but fraud under section 146 StGB. The difference lies in the time of the deception. Anyone who deceives about the conditions already in the application in order to obtain the subsidy at all commits fraud. From a legal perspective this classification decides on the offence and the possible penalty.

In the case of fraud the penalty range depends on the amount of the damage, with its own qualification thresholds. A precise examination of the statements and the course of the procedure stands at the beginning of the defence.

In depth: misuse or fraud →
03

Audit announced: clarify the legal position in good time.

If the funding body announces an audit, that does not yet mean criminal proceedings, but the course is being set now. From a legal perspective it makes sense to clarify in advance whether a use for a different purpose or an incorrect statement is at issue and how this presents itself under criminal law. A prepared and factual response is better than a spontaneous one.

Often a set of facts can be explained or a misunderstanding cleared up before it becomes relevant under criminal law. Early advice creates clarity about your own position.

In depth: the graduated penalty range →
04

Proceedings already under way: the defence follows the state of the file.

If the public prosecutor is already investigating, the matter concerns the defence in the pending proceedings. From a legal perspective the first step is access to the file in order to clarify whether the charge is pursued as misuse of a subsidy or as fraud and what amount is taken as the basis. This classification determines the entire strategy.

Even in pending proceedings there is room for manoeuvre, for example in making good the damage, in the assessment or in a diversionary disposal. Which path is possible depends on the specific charges.

In depth: misuse or fraud →

What the misuse of a subsidy is

The misuse of a subsidy under section 153b StGB covers the use of a subsidy for a different purpose. Anyone who uses a subsidy that was granted to them for a particular purpose wholly or partly for a different purpose is liable to punishment. The core of the offence therefore lies not in obtaining the subsidy but in its subsequent misuse.

A condition is that it is a subsidy within the meaning of the law. What is meant is a grant from public funds that is awarded without a market based consideration for an activity or function regarded as worthy of support. Mere considerations for deliveries or services do not fall under it.

Intent is required. Anyone who uses the funds incorrectly by accident does not fulfil the elements of the offence. The offender must therefore at least seriously consider the use for a different purpose possible and accept it.

Distinction

Misuse of a subsidy or subsidy fraud? The difference lies in the timing

Both charges concern public subsidies, yet they take hold at different points. What is decisive is whether there was deception in obtaining the subsidy or whether only the granted subsidy was used for a different purpose.

Comparison of the misuse of a subsidy under section 153b StGB and subsidy fraud under section 146 StGB
Feature Misuse of a subsidy section 153b StGB Subsidy fraud section 146 StGB
Überblick Conduct Use of a granted subsidy for a different purpose Deception in obtaining the subsidy
Timing Time of the deception The subsidy was granted rightfully, the misuse follows afterwards There is already deception about the conditions in the application
Measure Decisive threshold Amount of the subsidy used for a different purpose Amount of the damage caused
Result Classification Distinct offence with a graduated penalty range General fraud offence with its own qualifications

The graduated penalty range of section 153b StGB

The penalty range for the misuse of a subsidy depends on the amount of the subsidy concerned and is divided into three levels.

Basic offence. The misuse of a subsidy carries a custodial sentence of up to six months or a fine of up to 360 daily rates.

First qualification. If the subsidy used for a different purpose exceeds 5,000 euros, the penalty range is a custodial sentence of up to three years.

Second qualification. If the subsidy used for a different purpose exceeds 300,000 euros, the penalty range reaches from six months to five years of imprisonment.

The amount of the subsidy is therefore not only a question of the damage but directly determines the penalty range. Especially at the thresholds of 5,000 and 300,000 euros a precise calculation matters.

Misuse and fraud are not the same. Whether section 153b StGB or section 146 StGB applies is decided by whether the subsidy was granted rightfully and only afterwards used for a different purpose or whether the application already rested on a deception. This distinction has considerable consequences for the offence and the penalty range and should be clarified early.

Frequently asked questions

What you need to know about the misuse of a subsidy in Austria.

What is the difference between misuse of a subsidy and subsidy fraud? +

The misuse of a subsidy under section 153b StGB concerns the use of a lawfully granted subsidy for a different purpose. Subsidy fraud under section 146 StGB, by contrast, exists where the subsidy was obtained by false statements in the first place. The difference lies in the time of the deception.

From what amount is the misuse of a subsidy punished more severely? +

The penalty range is graduated. The basic offence provides for a custodial sentence of up to six months or a fine. If the subsidy exceeds 5,000 euros, up to three years are looming, if it exceeds 300,000 euros, the penalty ranges from six months to five years.

What counts as a subsidy within the meaning of section 153b StGB? +

What is meant is a grant from public funds that is awarded without a market based consideration for an activity or function regarded as worthy of support. A mere payment for a delivery or service is not a subsidy in this sense.

Am I already liable for an accidental mistake? +

No. The misuse of a subsidy requires intent, at least conditional intent. Anyone who uses the funds incorrectly by accident or out of a misunderstanding does not fulfil the elements of the offence. The precise clarification of intent is therefore central.

Does it help to repay the subsidy? +

A repayment does not automatically remove the offence that has already been committed, but it can have a mitigating effect as making good the damage and in an individual case open the path to a diversionary disposal. Whether and how a repayment makes sense should be agreed with the defence.

What should I do if the funding body announces an audit? +

An announced audit is not yet criminal proceedings. It makes sense to clarify in advance whether a use for a different purpose or an incorrect statement is at issue and to respond factually and prepared. Often a set of facts can be explained before it becomes relevant under criminal law.

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Topics
misuse of a subsidysubsidy fraudsection 153bsubsidieswhite collar crimefraud

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