AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
2.5 Obtaining Evidence/Testimony In addition to the documents and testimony col - lected during a dawn raid, the FCA may request information from the company during its inves - tigation. It can issue a summons to interview company personnel, and can also request that the company provides additional documents or data. Such requests for information can also be sent to other persons or companies that may have helpful information. Companies, their repre - sentatives and employees are, inter alia, obliged to provide information requested by the FCA, submit business documents or grant access to electronic documents pursuant to Section 11a of the Competition Act. In addition, the FCA can request official assis - tance from the general criminal prosecutor’s office or other government institutions in its investigation. Criminal prosecutors have surveillance powers for violations of criminal offences that, in the context of cartel conduct, typically involve bid rigging in violation of Section 168b of the Aus - trian Criminal Code or fraud in violation of Sec - tion 146 of the Austrian Criminal Code. 2.6 Attorney-Client and Other Privileges The FCA has stated that it recognises attorney- client privilege to comply with the ECJ’s juris - prudence (C-155/79, AM & S; C-550/07 P, Akzo Nobel). While there is no settled jurisprudence on the existence of a legal privilege in the con - text of a dawn raid, the Supreme Court of Austria recently stated in passing that if the FCA uses evidence gathered in a dawn raid in a manner that circumvents the legal protection of attorney- client privilege, such evidence might have to be disregarded by the courts (7 July 2022, 24 Kt 4/22a).
infringements are regarded as representatives of the affected company. Employees who are interviewed as witnesses have, in general, no formal right to counsel. However, they must be properly informed of their rights and obligations. Legal advice obtained from in-house counsel is not protected by legal privilege. Interviewed employees of the affected company have the right to involve personal legal coun - sel. As regards the counsel’s ability to speak or advise the interviewee during the interview, the general provisions and restrictions of the Aus - trian Professional Rules of Attorneys apply, pur - suant to which, for example, a counsel may not unduly influence a witness’ statement. Since administrative proceedings against indi - viduals cannot result in fines, and criminal proceedings are limited to cases involving bid rigging or fraud, it is not usually necessary for individuals to have separate counsel from their employers. Counsel would also not be neces - sary for an employee whose employer submits a successful leniency application, as discussed in 3.1 Leniency and 3.2 Amnesty/Immunity . However, there may be other potential liability risks for management or employees (eg, labour or civil recourse claims) that may require indi - vidual representation. In a dawn raid, apart from the usual steps taken in responding to a dawn raid, defence counsel will determine whether leniency is available and to what extent. If, instead, the initial steps are in response to an information request from the authority, defence counsel will likewise quickly need to determine whether unlawful conduct has occurred and whether applying for leniency is a possibility.
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