The AFCA had applied for a search warrant for a group of companies owing to suspected anti-competitive concerted action and/or practices, as well as the implementation of an association’s decisions relating to the sale of wood pellets, with the grounds for suspicions being directed against one of the companies. The purpose of these anti-competitive concerted practices was to fix selling prices and/or to limit or control sales.
The Cartel Court issued the search warrant, as requested by the AFCA, on 6 October 2022. The dawn raids were subsequently conducted as part of AFCA’s investigations between 18 and 20 October 2022 (press release of 20 October 2022).
One group of companies filed an appeal with the Supreme Cartel Court, criticising in particular the fact that:
- the wording of the search warrant did not definitively indicate the type and extent of the suspicion, and did not differentiate between the first respondent that was under reasonable suspicion and the other companies that were not, and
- there were no sufficiently concrete indications for an initial suspicion that would have justified a dawn raid.
The Supreme Cartel Court once more summarised a number of important aspects of its established practice on dawn raids in its decision. It noted in particular, by reference to case 16 Ok 7/13, that anonymous reports may in general be considered as justification for a dawn raid. It also emphasised that the Cartel Court had additionally based its decision on statistical data as well as numerous (justified) complaints from customers. The initial suspicion of an infringement could therefore not be regarded as mere speculation on the part of the Cartel Court.
The appeal was consequently dismissed.
“The AFCA sealed and stored all seized data securely as soon as the appeal was filed. The Supreme Court has now provided clarification on this matter, and we can analyse the data,” explained interim Director General Natalie Harsdorf-Borsch.
If a company files an appeal against a search warrant, the AFCA will only include the seized data in its investigations after the Supreme Cartel Court has ruled on the appeal, either dismissing or rejecting it.
The Supreme Cartel Court ruling is available in Austria’s Legal Information System (RIS): 16 Ok 7/22y