On 4 June 2025, the Austrian Federal Competition Authority (AFCA) applied to the Cartel Court to have a dawn raid ordered at a company engaged in the collection and recycling of packaging. On 11 June 2025, the Cartel Court ordered a dawn raid of the company’s “business premises, vehicles and IT” due to the suspected misuse of a dominant position (§ 5 Federal Cartel Act and Article 102 TFEU).
Following investigations conducted by the AFCA, there were reasonable grounds to suspect that the company in question, which holds a much higher market share than its competitors, was undercutting those competitors with illegal predatory prices in an attempt to drive them out of the market. There was also reasonable suspicion that the Company, through a subsidiary, was trying to bind individual major customers with exclusivity and loyalty discounts. Such discounts breach the non-discrimination clause applicable in the waste industry.
The AFCA carried out its search between 23 June and 1 July 2025 and made copies of physical and electronic documents.
Appeal to Supreme Cartel Court
The Company argued in its appeal that there had been no reasonable grounds to justify the ordering of a dawn raid. The Company also requested that the search and seizure of electronic copies of mobile phones, notebooks and the Exchange Server be excluded from the search warrant in order to protect its fundamental rights and those of its employees. The Company additionally claimed that the search of data should have been limited to a certain time frame. Finally, as a contingent request, the Company applied for the search warrant to be lifted.
Supreme Cartel Court ruling
The Supreme Court confirmed the legality of the search warrant issued by the Cartel Court. Specifically, it stated that the prerequisites for issuing a search warrant had been fulfilled since the available facts led to the justifiable and comprehensible conclusion that there had been reasonable suspicion of a breach of cartel law. The dawn raid was therefore necessary and proportionate.
With regard to the scope of the search warrant, the Supreme Court explained that it did not need to include an express restriction in relation to time frame, business premises or information sources, as the AFCA is limited in its activities by the object of the warrant and the requirement to protect fundamental rights. Communication and data storage is nowadays mostly carried out by digital means. At the time of issuing a search warrant, it is not known, however, which data carriers and which specific storage places contain potentially relevant data.
According to the OGH, this means that the AFCA has to check all documents found on the premises of the company in question against the warrant’s scope. It is unclear how a successful investigation result can be obtained in a less intrusive or even a comparable manner other than by searching potentially relevant data. Considering the reams of electronic data, seizing and screening that data in the Authority’s offices involves less encroachment of the Company’s rights than a long and continuous investigation on the latter’s premises. Personal data may be seized and examined to determine its relevance to the scope of the investigation, but it is not processed for any further purposes.
Constitutional Court
The Company also filed a party request with the Constitutional Court for a review of constitutionality (Article 140 para. 1 no. 1 lit d of the Federal Constitutional Act). The Company questioned the constitutionality of provisions in the Competition Act (particularly § 12 WettbG), saying that while the dawn raid had been carried out based on a court order, legal protection against the seizure and analysis of personal electronic data, which had been stored on company mobile phones, company notebooks and on the Exchange Server, had not been sufficient.
The Constitutional Court rejected the party request as inadmissible, stating it was too narrowly defined, and consequently did not consider it in further detail. In view of the stated concerns, the party request would also have had to challenge the provisions of § 12 WettbG that regulate legal protection in the event of dawn raids. This would have been the only way for the Constitutional Court to examine, in the case of reasonable concerns, how to remove a potential unconstitutionality.
In 2022, the AFCA published an updated version of its Guidance on Dawn Raids, which may be downloaded here (in German).