We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
29 July 2010
In 2009 the Supreme Court authorised the search of an Austrian company's premises to investigate possible cartel law infringements relating to the German fire engine market (for further details please see "More house searches under Cartel Law?"). Recently, in dealing with the same alleged infringement, the court issued a decision on the preconditions for searching the offices of attorneys who represent possible cartel members.(1)
Acting on behalf of the German Federal Cartel Office (FCO), Austria's Federal Cartel Authority (FCA) requested authorisation to search a law firm's office. The attorneys were suspected of having aided the cartel by paying invoices on behalf of their client, a suspected cartel member. The invoices were issued by a Swiss chartered accountant who performed organisational work for the cartel and later became the principal witness in the case against its members. On his invoices, he made deliberately false references to services rendered, but attached a list of the services actually performed. The German FCO claimed that the attorneys had made payments in order to conceal the alleged cartel.
The Higher Regional Court of Vienna, acting as cartel court, rejected the FCA's application for a search warrant, finding that it had not shown that the attorneys had intended to support the cartel when making payments on their client's behalf. However, the Supreme Court, acting as higher cartel court, granted the warrant. Section 12 of the Competition Act provides that the cartel court may allow such searches in order to obtain information from business documents on the basis of reasonable suspicion of an infringement of (among other things) Article 101 of the Treaty on the Functioning of the European Union. The Supreme Court ruled that the FCA need not suspect the person whose premises are to be searched. Therefore, the FCA need not prove fault on that person's part in order to obtain a cartel court warrant. However, as the Supreme Court found that reasonable suspicions were also directed against the attorneys personally, it was not required to consider further whether the warrant would have been granted without this additional direct suspicion.
In considering the reasons for suspecting the attorneys, the Supreme Court referred to the EU General Court's decision in AC Treuhand,(2) in which it was held that companies which are not active in the same market as other cartel members can nonetheless be found to have contributed to the cartel and thus to have infringed antitrust law. On this basis, the court in AC Treuhand fined a consulting company for providing other parties with expert knowledge, knowing that such knowledge would allow them to achieve targets in infringement of competition law.
The Supreme Court found that the attorneys had paid invoices that neither indicated the client being represented nor showed that the attorneys had mandated the services. This constituted reasonable grounds to suspect that the attorney in question was aware of the cartel and of the fact that by paying the invoices, he was helping the alleged cartel members to conceal their (suspected) illegal behaviour.
As the German FCO's investigations are also directed against the attorneys, the Supreme Court did not have to deal with questions of the protection of the attorneys' business secrets.
For further information on this topic please contact Dieter Hauck or Esther Hold at Preslmayr Attorneys at Law by telephone (+43 1 533 16 95), fax (+43 1 535 56 86) or email (firstname.lastname@example.org or email@example.com).
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.