AUSTRIA Law and Practice Contributed by: Astrid Ablasser-Neuhuber and Sebastian Reiter, bpv Huegel
Under Austrian law, legal advice from in-house counsel is not protected by statutory legal privi - lege. In addition, in the view of the Austrian authorities, Austrian law does not privilege cor - respondence between an undertaking and its outside counsel, unless the correspondence is in the possession of the lawyer. However, a lawyer cannot be compelled to testify against the inter - est of their client unless they are authorised by the client to do so. The legal privilege (within the outlined scope) is not limited to counsel admit - ted in Austria, but also applies to legal counsel of other EU member states. When European competition law is enforced, including dawn raids orchestrated by the FCA itself, legal privilege as set out in EU law applies. Neither a company nor its representatives can be compelled to admit to an infringement, either in an interview or in response to an information request. However, this privilege is limited, as company representatives are under an obliga - tion to reply to all questions relating to the under - lying facts of a potential infringement. In criminal proceedings, there is complete privi - lege against self-incrimination, including the right to refuse to testify. In theory, a company that is subject to a dawn raid can object to the collection of data or docu - ments (or the interviewing of witnesses) on the basis of legal privilege or that the information sought falls outside the scope of the search warrant authorising the dawn raid. However, no clear legal protections exist in such circumstanc - es. If a party refuses to have certain individu - ally specified documents inspected or seized on the grounds of legal privileges, such docu - ments must be presented to the Cartel Court, which will rule on whether and to what extent
they may be inspected (Section 12 (5), Competi - tion Act). The FCA may not inspect such docu - ments in advance of such a ruling, as, following amendments to the Competition Act in 2013, the affected company can only object to a dawn raid search with regard to individually specified docu - ments (a categorical sealing of documents is not permitted), and even then, only with respect to a very limited set of circumstances, either if the information is legally privileged or other rights to refuse to testify on the basis of a professional duty of confidentiality, medical concerns or elec - toral secrecy, that are unrelated to the scope of the search warrant or any legal privilege (per Sections 12 (5) and (6) of the Competition Act). As a matter of good practice, the FCA has stated that it will seal narrow categories of documents and keep them separate from its general case file if it is impractical for the party to specify individual documents during the dawn raid. The company will be given time to inspect the docu - ments and identify those it wishes to protect within a reasonable period of time. Moreover, the FCA allows the company to obtain a copy of all files gathered in the dawn raid that the FCA has made a part of its record file, which the party can review before submitting a statement to the FCA lodging its objections. Any objections lodged by the company against the FCA’s collection of evidence can only be brought before the Federal Administrative Court, which has rendered decisions that set out a very narrow and limited ability for the party to object. 2.7 Non-Cooperation Failure to respond to a so-called simple informa - tion request does not lead to any sanctions. A full information request must be answered cor - rectly and completely, otherwise the undertaking can be subject to administrative fines.
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