Unauthorised business activity

Legal definiton 

Section 250 of the Criminal Code:

(1) Whoever, without authorization, provides services or conducts manufacturing, commercial, or other business activities to a greater extent shall be punished by imprisonment for up to two years or disqualification.

(2) The perpetrator shall be punished by imprisonment for six months to five years or a monetary penalty if: 

a) they cause significant damage by the act mentioned in paragraph 1, or 

b) they obtain significant benefits for themselves or another by such an act.

(3) The perpetrator shall be punished by imprisonment for two to eight years if: 

a) they cause large-scale damage by the act mentioned in paragraph 1, or 

b) they obtain significant benefits for themselves or another by such an act.

Subjective aspect - intent

Unauthorised business activity is an intentional criminal offence. A criminal offence is committed intentionally if the perpetrator wanted to violate or endanger a legally protected interest in the manner specified by the Criminal Code (direct intent), or if the perpetrator knew that his actions could result in such a violation or endangerment and accepted the possibility of it occurring (indirect intent).

If the act can be deemed as mere negligence rather than intent, it does not constitute the described criminal offence. 

Defense

There are various defense strategies available. Given the elements of this criminal offence, the following questions may be relevant:

• Did the relevant activity in require a permit or authorization?
  
• Why did the person in question not have the authorization?
  
• Since when has the authorization been required?
  
• To what extent was the activity conducted?
  
• How long was the activity conducted?
  
• Was the activity carried out systematically or intermittently?
  
• Was the activity conducted for profit or without charge?
  
• Was the aim of the activity to create a permanent source of income?
  
• Could operating the activity without authorization have caused damage?
• Was the perpetrator's intent directed towards the decisive facts?