No Austrian enforcement power in case of house searches abroad

Jun 3, 2022 Benn-Ibler Rechtsanwälte

In the present case, the Austrian Administrative Court (Verwaltungsgerichtshof, VwGH) addressed a house search carried out in the Netherlands at the request of the Austrian Federal Competition Authority.

In the business premises of the party filing the appeal, a house search was carried out by the Dutch Competition Authority at the request of the Austrian authority pursuant to Article 22 of Regulation (EC) No. 1/2003 of December 16, 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. An (Austrian) search warrant was not available. The appealing party argued that the Dutch competition authority had only served as an "extended limb" of the Austrian authority and that there was therefore an act of direct administrative command and enforcement power. The house search was therefore to be assessed according to Austrian law and was therefore inadmissible.

The appeal argued in this regard: If the Austrian Federal Competition Authority wants to request another such authority to conduct a house search, there must be a factual situation relating to Austria which concerns an Austrian legal subject. Also for such a request according to Art 22 of Regulation (EC) No. 1/2003, the antitrust law requirement of a judicial order for a house search (Section 12 of the Competition Act (Wettbewerbsgesetz)) applies, since the act was carried out in the name and on behalf of the Austrian authority. Furthermore, there is a "double barrier" for such a request: Not only must the requirements for the investigative act be met under the law of the requesting authority, but also under that of the requested authority.

The VwGH argued in this regard:

The request according Art 22 of Regulation (EC) No. 1/2003 is to be considered separately from the act of administrative assistance. The actual administrative assistance, on the other hand, as the Austrian Supreme Court (Oberster Gerichtshof) has already clarified, is also carried out in the interest of the requesting authority, but in the name of the requested authority, since an authority in another territory has no authority to issue instructions. The VwGH saw the house search as an investigative act of the Dutch authority, which was to be qualified according to Dutch law. Ultimately, the VwGH did not consider the request for administrative assistance to be an act of direct administrative command and enforcemtent power, as the actual act was incumbent on the requested authority and thus lacked immediacy.

The appeal had to be dismissed as unfounded.

VwGH Ro 2018/04/0001 (18.03.2022)