Contact: Dieter Hauck and Esther Sowka-Hold; Preslmayr Attorneys at Law (Austria)
On November 26 2013 the Supreme Court (acting as the Higher Cartel Court) ruled once again on the investigatory powers of the Federal Cartel Authority (FCA) with regard to house searches.
Facts
The FCA had searched the premises of several undertakings (the applicants) on the basis of a search warrant issued by the Cartel Court, following suspicions of participation in anti-competitive agreements and/or concerted practices with regard to vertical price agreements between the applicants and retailers of daily consumer goods, among other things. In the course of this house search, the FCA reviewed documents indicating that the applicants had also regularly colluded on prices with wholesalers of daily consumer goods. On the basis of this new information, the FCA issued a written memorandum and requested that the search warrant be extended to documents concerning vertical price agreements with wholesalers of daily consumer goods.
The extension to the search warrant was granted by the cartel court, but was subsequently challenged by the applicants. In particular, the applicants argued that a search warrant cannot be extended on the basis of an accidental discovery, as this would be contrary to the rules on inadmissible evidence set out in Section 11(1) of the Competition Act. According to the applicants, an accidental discovery could only be regarded as an inducement for an information request and the applicants should submit the respective documents after the house search.
