AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
fines. Often, the FCA enters into settlement talks with undertakings prior to bringing an applica - tion before the Cartel Court. As part of that process, the undertakings must acknowledge certain facts about the underlying conduct, as well as the legal basis of a fine. The Cartel Court cannot go beyond the fine applied for by the FCA or the FCP. The Cartel Court is not restricted to the evidence offered by the parties during the proceeding; it may gather evidence itself ex officio. The pro - ceedings may end with a decision or dismissal (on technical grounds or on substance) of the official parties’ motion. The duration of the pro - ceedings (from the start of the investigation to the Cartel Court’s decision) varies from case to case, and depends on the complexity of the par - ticular case at issue. The decision of the Cartel Court (unless the subject of a settlement with the official parties) can be appealed to the Cartel Court of Appeals, which usually takes at least six months to render a decision. 2.2 Dawn Raids/Search Warrants Dawn raids are a common tool employed by the FCA to investigate cartels in Austria. In recent years, prominent dawn raids were conducted in the waste disposal sector across Austria, in the pellets sector, in the beer industry and in the refrigerator and cooling units sectors. The offices of Red Bull were searched on behalf of the European Commission. Upon a request by the FCA, the Cartel Court can order an investigation of business premises, pursuant to Section 12 of the Competition Act. Generally, outside counsel can represent the investigated company in all aspects relating
to the dawn raid, and can be present on site during the raid to advise the company. During a dawn raid, the company has the right to ask for its legal advisers to be present, although the FCA is not obliged to wait for their arrival to start its search. Typically, the FCA does not conduct substantive interviews during a dawn raid. When it does, company counsel can usu - ally be present. For senior representatives of the company (who are deemed to speak on behalf of the company), there arguably exists a right to counsel being present during such an interview. For other employees, the presence of individual counsel would only be necessary in extraor - dinary circumstances (eg, involving potential criminal liability as a result of suspected fraud). 2.3 Spoliation of Evidence During a dawn raid, the company is usually informed by the authorities that the destruction of data or documents can be an aggravating factor during any subsequent fine proceedings. According to the FCA’s handbook on dawn raids, full co-operation with the investigation (in the context of a leniency application or other oppor - tunities for obtaining a reduction in fines) entails that the company does not allow evidence to be concealed, falsified or destroyed. Arguably, the effectiveness of cartel investiga - tions is also protected by the Austrian Criminal Code, which includes a general prohibition of destroying, damaging or suppressing evidence. 2.4 Role of Counsel Officers and employees have a right to counsel if they are representatives of the affected com - pany. Those persons whose conduct is subject to investigation and gives rise to antitrust pro - ceedings (especially senior personnel with rep - resentative powers, such as board members) or employees suspected of potential antitrust
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