Guidelines

• Within the scope of the inspection warrant, the officials are entitled to inspect and copy all documents even if they include business secrets. If it is necessary to ensure the success of the investigation, evidence may also be seized.
  Important! Always make copies of the inspected, copied or seized documents for the external lawyers. Make sure to have enough personnel available for making such copies.
• The following documents are not to be inspected, copied or seized (see point (3) for instructions in case of a dispute on this):
  • Documents which are not related to the subject matter of the investigation (e.g. private documents; documents without any relation to the reasons indicated in the warrant triggering the investigation; documents of other companies on the same site, which are not covered by the warrant).
  • The confidentiality of written communications between the company and an independent lawyer (does not include an in-house legal department, except that it merely passes on such correspondence) provided that such communications are made for the purposes and in the interests of the client's rights of defence (legal privilege).
  • Documents which are subject to a legally recognized obligation of professional secrecy or a legal professional privilege according to sec 157 para 1 subpara 2 to 5 Austrian Code of Penal Procedure (StPO) (other privileged information).
    If the officials want to inspect such privileged documents, only show those parts of these documents, which prove their privileged character. 
• If the officials want to inspect, copy or seize any of the documents (also stored on electronic devices or in clouds) pursuant to point (2), inform the officials that you object to such action (but do not attempt to stop the officials) and
  • regarding the privileged documents described in point (2) (a):
    request that the search of these documents is recorded in the minutes of the inspection and that the minutes record that objections were made to the inspection / copying / seizure.
  • regarding the documents containing privileged information as described in point (2) (b):
    • which can easily be identified at the time of the inspection: request that these documents are stored separately from the other documents. State that the documents identified are documents subject to legal privilege. Request that the search of these documents is recorded in the minutes of the inspection and that the minutes record that objections were made to the inspection / copying / seizure.
    • which cannot easily be identified at the time of the inspection (as this would lead to disproportionate delays): request that the entire category of documents that may contain privileged items is stored separately from the other documents. State that documents subject to legal privilege are likely to be included within this category. Request that the search of these documents is recorded in the minutes of the inspection and that the minutes record that objections were made to the inspection / copying / seizure.
• insofar as you are subject to a legally recognized obligation of professional secrecy or a legal professional privilege according to sec 157 para 1 subpara 2 to 5 Austrian Code of Penal Procedure (StPO), regarding the documents containing privileged information as described in point (2) (c):
  • which can easily be identified at the time of the inspection: request that these documents are sealed and make sure that this is also recorded in the minutes (Point "sichergestellt gemäß § 12 Abs 5 WettbG" in the current version of the FCA's standard form for minutes of an inspection).
  • which cannot easily be identified at the time of the inspection (as this would lead to disproportionate delays): request that the entire category of documents that may contain privileged items is sealed and is stored separately from the other documents and make sure that this is also recorded in the minutes (Point "sichergestellt gemäß § 12 Abs 6 WettbG").
     

• Grant access to computer files by providing passwords and allow the officials to make electronic copies of computer files. Not providing passwords can lead to a fine being imposed.
  
  Important: always make an extra electronic copy of all computer data which the officials inspect, copy or seize. Require the officials to make a sound forensic copy of all computer data which they copy (e.g. by requiring the HASH-key of each copy).
   
• If appropriate, inform the officials that privileged information (see above Documents) is accessible on the computer (or the respective storage medium) and that such data may not be copied since this information is protected (see above). In this case request that the officials check each file rather than copying the entire data (e.g. respective storage medium or an e-mail account). If the officials refuse this, ask to separately deposit the storage medium carrying the privileged information and proceed as set out above under Documents.
  
  During the investigation, the official must ensure that the content of the inspected documents and files are not disclosed to non-authorised persons.

This is evidence which indicates infringements of the law other than those for which the search is being conducted. There is no legal basis for the immediate use of "random finds". However, this evidence can lead to the initiation of new proceedings or to the extension of the inspection warrant (during the inspection).

• During the inspection, minutes have to be taken; these must be signed at the end of the investigation by all persons present. Normally, the FCA uses a standard form for taking minutes (Niederschrift für Unternehmen – Hausdurchsuchung gemäß § 12 WettbG).
• The officials are entitled to affix seals to premises, rooms, cupboards and documents, etc. (e.g. if an inspection lasts several days). Do not break this seal and take precautions to avoid any impairment of the seal. Breaking a seal is a criminal offence (sec 272 para 1 Austrian Criminal Code (StGB)) and can lead to very high fines for the company.