Dawn Raids the Powers of Investigation of the European Commission according to Art of the Council Regulation No. 1/2003 MAGDALENA BIEREDER *

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1 43 Juridicum Law Review Vol 1:1 Dawn Raids the Powers of Investigation of the European Commission according to Art of the Council Regulation No. 1/2003 MAGDALENA BIEREDER * Contents I. Introduction II. The Regulatory Framework Articles 20 to 22 Reg 1/ III. Powers of the Commission IV. Support of National Competition Authorities & Coercive Measures V. Proceedings & Fines VI. Best Practice & Preparation for the Undertaking VII. Legal Protection & Remedies VIII. Fundamental Rights Issues The Right to Privacy IX. Consequences Beyond Legal Penalties Loss of Reputation X. Conclusion * Magdalena Biereder, Mag. a iur., is a PhD candidate at the University of Vienna School of Law.

2 44 Juridicum Law Review Vol 1:1 I. Introduction To safeguard undistorted Competition in the European Single Market is one of the most important tasks of the European Union. A competitive market is said to create the best conditions for innovation, to stimulate entrepreneurship and be the most excellent environment for consumers and businesses. The EU competition policy therefore aims at achieving three main objectives: enhancing consumer welfare by protecting a free market, supporting growth, jobs and competitiveness of the EU economy and fostering a competitive culture. 1 There are two principal provisions implementing the EU competition policy: Article 101 and Article 102 of the Treaty on the Functioning of the European Union (TFEU). 2 Article 101 refers to cartels and declares all agreements between undertakings void, which are found to restrict competition. 3 Article 102 forbids undertakings to abuse their dominant position. 4 The European Commission is responsible for the enforcement of those provisions. It has therefore several powers under Regulation 1/2003 (Reg 1/2003) 5 in order to find and penalize cartels and other anti-competitive behavior. Inter alia, chapter five of the Regulation enables the Commission to carry out inspections. Those are generally referred to as dawn raids and constitute the most draconian measures for securing information about potential competition infringements. 6 Business premises and even private premises of the parties under investigation may be entered in order to seize the relevant information. This can be critical when judged against fundamental rights standards. The power to carry out dawn raids however constitutes the most important investigative method for the European Commission. 7 Unannounced inspections in business premises take place in basically all cartel cases. 8 Alone between 1 May 2004 and the end of 2008 the Commission conducted 29 inspections in cartel cases. 9 Additional inspections take place in the framework of sector inquiries and other antitrust cases. The aim of this paper is to shed light on the different aspects and issues that may arise in connection with dawn raids. Procedural issues shall be addressed as well as economic consequences and practical points. The paper will be structured as follows: 1 Commission, Commission Staff Working Paper accompanying the Report from the Commission on Competition Policy 2011 COM (2012) 253 final, 3. 2 Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C83/01 (TFEU). 3 Art 101 TFEU. 4 Art 102 TFEU. 5 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1 (Reg 1/2003) 6 Damian Chalmers, Gareth Davies, Giorgio Monti, European Union Law (2nd edn, Cambridge University Press 2010) Commission, Commission Staff Working Paper accompanying the Communication from the Commission to the European Parliament and Council Report on the functioning of Regulation 1/2003 SEC (2009) 547 final (Report on the functioning of Regulation 1/2003) para Jochen Burrichter, Thomas Tobias Hennig in Ulrich Immenga, Ernst-Joachim Mestmäcker (eds), Wettbewerbsrecht Band 1/ Teil 2 EG (5th edn, CH Beck 2012) Art 20 VO 1/2003 para 5. 9 Report on the functioning of Regulation 1/2003 (n 7) para 70.

3 45 Juridicum Law Review Vol 1:1 First an introduction on the regulatory framework for dawn-raids shall be given and the different provisions enabling inspections shall be explained. Furthermore the Commission s various powers during an inspection will be laid out in detail as well as the concrete proceedings and the Commission s fining competences. Subsequently attention will be drawn to the means for legal protection and remedies. Lastly fundamental rights issues and the economic consequences of dawn raids will be addressed. In order to keep the paper readable, some abbreviations and simplifications will be made. Whenever undertakings are addressed, the same rules also apply to associations of undertakings. Where Articles are mentioned without referencing the corresponding statues, the Articles refer to Regulation 1/2003. II. The Regulatory Framework Articles 20 to 22 Reg 1/2003 This section will outline the different provisions that enable inspections and also evaluate on their requirements. Article 20 provides the Commission with the general power to conduct all necessary inspections of undertakings and their associations. 10 Those inspections can be both based on a written authorisation 11 or a formal decision of the Commission. 12 Either way the subject matter and the purpose of the inspection must be specified and possible sanctions must be indicated. 13 Article 21 enables the Commission to carry out dawn raids in other premises than business premises. Article 22 deals with investigations by competition authorities of Member States. a. Article 20 (3) written authorisation Such an inspection is solely to be classified as simple investigative method of day-today administration. 14 Prior to conducting the inspection the Commission must in good time give notice to the national competition authority (NCA) of the member state. 15 The undertakings do not have to comply with the inspection. No sanctions for uncooperative behaviour exist. 16 Whether the inspection can be carried out successful or not depends on the voluntary cooperation and participation of the concerned undertaking. For that reason the Commission usually gives prior notice to the concerned undertaking in good time as well. Otherwise the officials might risk of travelling to the undertaking and wasting time and money for finally not being let in. 17 b. Article 20 (4) formal decision The Commission can also conduct an inspection pursuant to a formal decision of the Commission. In this case the undertaking is legally obliged to submit to the inspection. 18 If the undertaking refuses to submit, fines up to 1% of the total 10 Art 20 (1) Reg 1/ Art 20 (3) Reg 1/ Art 20 (4) Reg 1/ Art 20 (3) f Reg 1/ Wolfgang Jaeger in Wolfgang Jaeger, Petra Pohlmann, Harald Reiger, Dirk Schroeder, Frankfurter Kommentar zum Kartellrecht, Art 20 VO 1/2003 (R 76, May 2012). 15 Art 20 (3) Reg 1/ Art 20 (3) Reg 1/ Burrichter and Hennig (n 8) para Art 20 (4) Reg 1/2003.

4 46 Juridicum Law Review Vol 1:1 turnover in the preceding business year can be imposed. 19 Those fines are separate from any final penalty the undertaking may get for competition law violations. Even if the undertaking is not found guilty of any breaches of law, those fines apply. Before the Commission can issue a decision under Article 20 (4) the NCA of the member state, in whose territory the inspection is to be conducted, has to be consulted. 20 The NCA has no power of veto but so receives enough time and information in case its support is needed. 21 Such an inspection takes place without any prior notice to the undertaking concerned. Because of the surprise moment, undertakings are not able to destroy any evidence for antitrust law violations. However, in order for the decision to get effective, it has to be handed to the undertaking which is obliged to sign a minute of notification. This serves only to certify delivery and does not imply submission to the inspection. 22 c. Article 21 inspection of other premises Experience has shown that there are cases where business records are kept in the homes of directors and other people working for an undertaking. 23 Article 21 therefore also entitles the Commission to carry our inspections in other premises, land or means of transport. 24 However it is necessary to obtain judicial authorisation by the national judicial authority of the member state in which the inspection should be conducted. 25 In all cases there must be an initial suspicion that is some indication for a possible competition law violation, in order for the Commission to being able to act. Other restrictions include the necessity regarding the subject matter and the proportionality test. 26 Inspections can be conducted not only in the premises of the undertaking suspected but also in the premises of third parties. However stricter rules regarding proportionality apply. 27 d. Article 22 - investigations by competition authorities of Member States Article 22 provides the regulatory framework for fact finding measures conducted by Member States on behalf of either the European Commission or other Member States. As the aim of this seminar paper is to evaluate the powers of the 19 Art 23 (1) c Reg 1/ Art 20 (4) Reg 1/ See Section IV on the NCA s support. 22 Commission, Explanatory note to an authorisation to conduct an inspection in execution of a Commission decision under Article 20 (4) of Council Regulation No 1/2003 (15/9/2011) < accessed 30 November 2012 (Explanatory Note) Recital Recital 26 Reg 1/ Art 22 Reg 1/ Art 22 (3) Reg 1/ Burrichter and Hennig (n 8) paras Burrichter and Hennig (n 8) paras 13.

5 47 Juridicum Law Review Vol 1:1 Commission and not the powers of various NCAs, this section will be kept rather short. i. Article 22 (1) - Fact finding measures of NCAs for NCAs of other member states The NCA can carry out any inspections or other fact-finding measure in its own territory on behalf of another member states NCA. In order to base a request for mutual assistance on Art 22 (1) it is necessary that an infringement of Article 101 or 102 TFEU is suspected. Art 22 (1) cannot be used for requests regarding the suspicion of violations against purely national laws. 28 ii. All requirements regarding such requests of both, the requesting and the requested NCA must be fulfilled. 29 The requested NCA carries out the inspection on its own responsibility. It is granted exactly the same powers as when conducting a purely national inspection according to its own national competition laws. Additionally the general principles of European Union law apply. 30 Before the requested NCA decides whether it will carry out the request, it has to notify the European Commission. 31 Fact finding measures of NCAs for the European Commission The European Commission can equally ask for mutual assistance regarding inspections pursuant written authorisations and pursuant to formal decisions. Concerning inspections pursuant to formal decisions, the formal decision (Art 20 (4) Reg 1/2003) must be issued before the request to the NCA is made. Requested NCAs are obliged to carry out the request. The officials are acting on their own responsibility and are again subject to their own national laws. They are also granted the same powers as under their national laws. 32 If the request concerns a simple written authorisation, the undertaking needs to give its agreement. 33 Additionally most national laws also provide the power to conduct dawn raids to the various national competition authorities of the member states. 34 III. Powers of the Commission This section will deal with the powers the Commission is granted by Reg 1/2003 when conducting an inspection. Article 20 (2) lit a-e empowers the Commission to enter any premises, land and means of transport of undertakings and associations of undertakings; to examine the books and other records related to the business, irrespective of the medium on which they are stored; to take or obtain in any form copies of or extracts from such books or records; to seal any business premises and 28 Austrian Supreme Court, OGH 16 Ok 7/09, 15 July Jaeger (n 14) paras Jaeger (n 14) para Jaeger (n 14) para Art 22 (2) Reg 1/ Jaeger (n 14) para E.g. in Austria: 12 WettbG.

6 48 Juridicum Law Review Vol 1:1 books or records for the periods and to the extent necessary for the inspection; to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers. 35 The meaning of this provision will be now explained in detail: a. enter any premises, land and means of transport of undertakings and associations of undertakings 36 Art 20 (2) lit a Reg 1/2003 gives the permission to enter any premises, land and means of transport of undertakings and associations of undertakings. It is however not important whether the premises etc actually do belong to the undertaking. Only the functional attribution to the business is relevant. All rooms within the buildings of the undertaking can be entered. Officials do not have to restrict themselves to for example simply waiting in a conference room and getting the requested documents brought by the employees. 37 On the contrary they are allowed to move freely and look for even documents that have not exactly been named before. 38 b. to examine the books and other records related to the business, irrespective of the medium on which they are stored 39 Records related to the business take into account all records that provide information on the economic situation of the undertaking. This includes written documents (accounting records, minutes of meetings, notes, files, appointment diaries, calendars, internal and external communication, travel expense accounting, contracts,..), acoustic, electronic, electromagnetic, photographic and other data. Especially internal and external mail correspondence and other IT-data is of big importance. Yet, all searched data needs to be related to the subject-matter. 40 Private documents cannot be looked at. A rebuttable presumption exists that all documents found within the premises of the undertaking are related to the business. 41 Article 28 Reg 1/2003 obliges all officials involved to keep any information, gathered through the inspection confidential (professional secrecy). For that reason also records containing business secrets have to be disclosed. 42 The Commission has no right to request data that yet does not exist, ergo it cannot request to create or regenerate certain documents (e.g. statistics or reports). 43 Whereas disputes regarding the obligation to present certain data occur, the right to decide generally lies with the Commission itself. For that purpose the undertaking is obliged to disclose the amount of information necessary in order for the Commission to assess the issue. If the undertaking refuses to do so, high fines might 35 Art 20 (2) Reg 1/ Art 20 (2) a Reg 1/ Burrichter and Hennig (n 8) paras 44ff. 38 Joined Cases 46/87 & 227/88 Hoechst AG v Commission [1989] ECR 2859, para Art 20 (2) b Reg 1/ Burrichter and Hennig (n 8) para 47ff. 41 Holger Dieckmann in Gerhard Wiedemann (ed), Handbuch des Kartellrechts (2nd ed, CH Beck 2008) 42, para Art 28 Reg 1/ Burrichter and Hennig (n 8) para 51.

7 49 Juridicum Law Review Vol 1:1 be imposed. 44 In practice, the Commission sometimes agrees to put the disputed documents in a sealed envelope in order for a hearing officer to decide upon the matter. 45 Excursus: Legal Privilege The Court of Justice also protects the privacy of communications between an undertaking and its lawyers. Therefore information passing between a lawyer and his clients must not be disclosed. This is based on the undertaking s right to legal assistance. Lawyers need to provide independently and confidentially all necessary assistance to their clients and therefore need to have access to also potentially incriminating information. 46 Besides from all correspondence, documents that have been prepared by the undertaking to be submitted to the lawyer and all other working papers that have been created to aid in preparing to the defence are privileged. 47 However, as in many Member States in-house lawyers are not subject to professional codes of discipline, the ECJ curtailed the legal privilege to only independent lawyers, not in-house lawyers. 48 c. to take or obtain in any form copies of or extracts from such books or records 49 The Commission s officials are entitled to take or obtain in any form copies of or extracts from books or records related to the business and subject-matter. The Commission is however not entitled to confiscate any documents. All originals have to rest with the undertaking. 50 In case there is no access to a copy machine within the premises of the undertaking, the officials are allowed to take the documents elsewhere for a short period of time. 51 Regarding electronic information, IT environment, storage media and hardware, the Commission is also only entitled to examine the data related to the subjectmatter. This means that the Commission is not competent to simply copy all the information and examine it outside the undertaking s premises. Tough the undertaking can voluntarily agree to create a total backup of all data. This might be considered by the undertaking for the reason of shortening the time of the inspection in its own premises. Usually the Commission then seals a copy of the storage medium in question and invites the undertaking to continue the inspection together within the facilities of the Commission Art 23 Reg 1/ Decision of the President of the Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings [2011] OJ L275/29, Article Chalmers, Davies and Monti (n 6) Joined Cases T-125/03 & T-253/03 Akzo Nobel Chemicals Ltd and Akros Chemicals Ltd v Commission [2007] ECR II-3523, paras 123, Case C-550/07P Akzo Nobel Chemicals Ltd and Akros Chemicals Ltd v Commission [2010] ECR I Art 20(2) c Reg 1/ Jaeger (n 14) paras 49f. 51 Burrichter and Hennig (n 8) para Ibid. para 65

8 50 Juridicum Law Review Vol 1:1 After finishing the inspection, the undertaking receives a list of all records, books and documents copied. 53 In case the undertaking s photocopier is used for copying the documents for the Commission, the undertaking can request the reimbursement of the costs for the photocopies. 54 d. to seal any business premises and books or records for the periods and to the extent necessary for the inspection 55 Officials of the Commission are entitled to seal any business premises, books or records for the period of the inspection if necessary. The proportionality test applies. This permission includes the right to seal furniture, file cabinets, storage boxes, cupboards, tables and so on. Yet it is not possible to seal means of transport. 56 Electronic data can be sealed in creating a backup at the beginning of the inspection. 57 Where officials decide to seal any item, a minute will be made. The undertaking has to ensure that affixed seals including the immediate environment (e.g. door, doorframe) remain untouched until they are removed by the officials again. 58 e. to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers 59 Art 20 (2) lit e gives the permission to ask any representative or member of staff for explanations on facts or documents relating to the subject-matter and purpose of the inspection. This refers especially to the explanation of shortcuts, terms and definitions, the identification of documents and of their authors, etc as well as to information on internal organisational matters, field of responsibilities within the undertaking etc. 60 For all other questions the Commission might have it needs to issue a formal request of information according to Article 18 or take a formal statement according to Article 19 of the Regulation 1/2003. Those are separate fact-finding measures, subject to slightly different rules. They should therefore not be mixed up with or circumvented by the power to ask on the spot questions during an inspection. 61 When information is demanded, not only the legal privilege (see excursus above III.b) but also the right against self-incrimination have to be kept in mind. In answering questions, there is a risk that the undertaking may provides proof that it has infringed competition law. Recital 23 of the Regulation states that undertakings cannot be forced to admit that they have committed an infringement. 62 This right is limited in two ways. Although undertakings cannot be forced to admit infringements, they are in any event obliged to answer factual questions and to provide documents, even if this information might be used to establish the existence 53 Explanatory note (n 22) Recital Ibid. 55 Art 20 (2) d Reg 1/ Jaeger (n 14) para Ibid. 58 Explanatory note (n 22) Recital Art 20 (2) e Reg 1/ See also Burrichter and Hennig (n 8) para Ibid. Para Recital 23 Reg 1/2003.

9 51 Juridicum Law Review Vol 1:1 of such an infringement. 63 Second, this right only applies to requests where the addressee is required to reply under pain of a fine. Where a simple request based on a written authorisation is made, this protection is not available, because the undertaking has no duty to reply. 64 All explanations will be recorded in any form by officials of the Commission. A copy of the recording will be then handed to the undertaking after the inspection. The Commission then sets a time limit within the undertaking is able to communicate any rectifications, amendments or supplements to the explanations. This is important for cases, where a member of staff provided information but was not authorised to do so on behalf of the undertaking. 65 f. Experts and other people accompanying the Commission Often the officials of the Commission will be accompanied by various experts as for example a person with special knowledge in IT matters, accountants or auditors. Those are usually assigned on a contractual case to case basis and enjoy the same powers as the officials of the Commission. 66 Yet they are only allowed to make use of their powers in the presence of an official. 67 Officials and other persons authorised or appointed by the competition authority of the Member State in whose territory he inspection takes place are also entitled to actively assist in the inspection. They also enjoy the same powers as laid out in Art 20 (2). 68 See also beneath section IV. g. Inspections in private premises Generally the same rules apply for inspections in official premises of the undertaking as for private premises. They only two exceptions are that officials are neither competent to seal anything nor are they entitled to ask for explanations on facts or documents on the spot. Besides they are entitled to enter all rooms and to examine all books and records relating to the subject matter as well as to take or obtain copies. 69 IV. Support of National Competition Authorities & Coercive Measures: Article 20 (5) of the Regulation 1/2003 allows for NCAs to assist the European Commission when carrying out inspections. Assistance by the national officials can be either triggered by the national competition authority itself or the Commission. In this case the officials of the Member State enjoy the exact same powers as the officials of the Commission. 70 Where an undertaking opposes an inspection, although it was ordered pursuant to Art 20 (4), the Member States should afford the necessary assistance. Usually this 63 Ibid. 64 Chalmers, Davies and Monti (n 6) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the Treaty [2004] OJ L123/18 (Regulation on Competition Proceedings) Art Art 20 (2) Reg 1/ Burrichter and Hennig (n 8) para Art 20 (2) Reg 1/ Art 21 (4) Reg 1/ Art 20 (5) Reg 1/2003.

10 52 Juridicum Law Review Vol 1:1 means use of force by national police officers. The officials of the Commission itself are not entitled make use of any coercive measures. In practice this means that the Commission s officials have to issue a formal statement about the opposing acts set by the undertaking. Any further action by the NCA is then based on this formal statement. 71 In many Member States 72 coercive measures require additional authorisation from a judicial authority according to national rules. Such an authorisation can be applied for by the NCA prior to conducting the inspection as a precautionary measure. 73 The enforcement measures by the national police officials are subject to national procedure law. As these measures are set in order to enforce European Union law, also the general European Union law principles apply. 74 In practice the judicial authorisation is always applied for before attempting to conduct the inspection. The Commission s officials usually come along with officials of the NCA and national police officers. 75 V. Proceedings & Fines The Commission usually initiate proceedings regarding competition law violation after receiving complaints, at its own initiative or after an application for leniency. Generally the parties concerned have to be informed and the initiation of proceedings has to be made public. However the investigative powers according to Chapter V of Regulation 1/2003 can be exercised before initiating proceedings. 76 The consequences such a public announcement might have for the undertaking will be addressed in the end of this paper (See section IX.). This part will focus on the actual proceeding when conducting an inspection. The standard situation is that the Commission will conduct an unannounced surprise inspection based on a formal decision pursuant to Art 20 (4) Reg 1/2003. In such a case the undertaking will only be informed when the officials are already there. They ll prove their identity by means of an European Commission ID card and present written authorisations, which serve to name all officials and other accompanying persons. 77 Additionally they will hand a certified copy of the formal decision to the undertaking. A notification of service has to be signed in order to certify delivery. The undertaking s signature however does not imply submission to the inspection. 78 The officials will then explain procedural matters, particularly confidentiality, and the possible consequences of a refusal to submit to the inspection. 79 The undertaking is legally obliged to submit to inspections pursuant to Article 20 (4). If the undertaking refuses to submit to the inspection the Commission is able to impose fines up to 1% of the total turnover in the preceding business year. 80 Additionally periodic penalty payments up to 5 % of the average daily turnover in 71 Jaeger (n 14) para E.g. Austria. 73 Art 20 (7) Reg 1/ Jaeger (n 14) para Peter Thyri, Kartellrechtsvollzug in Österreich (Manz 2007) para Art 2(3) Regulation on Competition Proceedings. 77 Explanatory note (n 22) Recital Explanatory note (n 22) Recital Explanatory note (n 22) Recital Art 23 (1) c Reg 1/2003.

11 53 Juridicum Law Review Vol 1:1 the preceding business year per day and calculated from the date appointed by the decision may be issued in order to compel the undertaking to submit to the inspection. 81 Both, the fines according to Article 23 as well as the periodic penalty payments (Article 24) are completely independent from any fines that may be imposed because of the potential competition law violation. Even if the undertaking is not found to have infringed neither Article 101 nor Article 102 TFEU the sums have to be paid. Fines might also be imposed in cases where the undertaking indeed submits to the inspection in general but then does not produce all of the requested books or records. 82 The same applies when representatives or members of staff of the undertaking, in response to a question asked in accordance with Article 20 (2) lit e, give an incorrect or misleading answer; fail to rectify incorrect, incomplete or misleading answers within a certain time limit or fail or refuse to provide a complete answer on facts relating to the subject-matter at all. 83 Finally fines can also be issued for the breaking of seals affixed in accordance with Article 20 (2) lit d. 84 The undertaking can consult a legal advisor for assistance during the inspection. This consultation might be either carried out by telephone or physical presence. The presence of a lawyer however is not necessary for the inspection to take place. The Commission is usually willing to wait a short period of time pending consultation before starting the inspection. 85 For the duration of the inspection the Commission frequently blocks individual accounts in order to carry out its examination of electronic information. The undertaking is then not allowed to interfere with these blocked accounts and should inform the concerned employees accordingly. 86 As regards searching the IT environment, storage media and hardware, the Commission might use search tools, built into the storage media investigated and might also conduct searches based on keywords. The officials can also bring some specialised software or hardware which allows to search and recover electronic data whilst at the same time respecting the integrity of the undertaking. 87 All documents and data copied during the inspection will fall under Article 28 of Council Regulation No 1/2003 and be therefore covered by the principle of professional secrecy. None of the officials or other persons accompanying the Commission is therefore allowed to disclose any of the information collected. 88 If it becomes necessary at a later stage of the procedure, to grant other parties access those files, the undertaking will be given the possibility to identify any business secrets and other confidential information. The undertaking then has to justify the claim of confidentiality and has to provide non-confidential copies. 89 All personal 81 Art 24 (1) e Reg 1/ Art 23 (1) c Reg 1/ Art 23 (1) d Reg 1/ Art 23 (1) e Reg 1/ Explanatory note (n 22) Recital Explanatoriy note (n 22) Recital Explanatory note (n 22) Recital Art 28 Reg 1/ Explanatory note (n 22) Recital 13.

12 54 Juridicum Law Review Vol 1:1 data obtained is further subject to the Regulation No. 45/2001 on the protection of personal data. 90 VI. Best Practice & Preparation for Undertakings Due to the increasing numbers of inspections conducted by the Commission, many law firms have come up with best practice guidelines for undertakings. 91 They all agree on the main principles of acting cooperatively, staying polite but noting every step the Commission does. As the fines for non compliance can reach very high amounts, it is indeed advisable to follow certain tips. Additionally undertakings can help to keep the time of an inspection, and therefore the interruption of the business, to the absolute minimum necessary by being prepared in advance. All undertakings which might be on the Commission's radar, regardless of the reason, should have an internal strategy on how to deal with such situations. It is advisable to assign somebody, e.g. a compliance officer or a member of the legal department to coordinate the proceedings for an emergency. All members of staff should be informed, that in case of an inspection taking place, absolutely no third parties must be told of the investigation and that there must be no deletion, destruction or concealment of documents or data. 92 If necessary a stock exchange announcement (e.g. an ad hoc disclosure announcement) as well as a low-key press release can already be prepared in advance. 93 All legally privileged documents should be marked and preferably be stored separately. 94 Particular attention should be devoted to the IT-environment of the undertaking. As already mentioned above (see also section V.), increasingly, digital forensics is being employed. Lots of documents and communications may only exist in digital form and also deleted data and meta-data might be interesting for investigators. With regard to facilitating the search of the officials and keeping interruptions short, the undertaking should provide easy access to (only) the requested data. Therefore it has to know the exact location of key data sources and be ensured that they contain the minimum data necessary in order to keep the business going. At the same time it might spend some consideration on the organization of its electronic archives. Usually the officials focus on specific individuals. As a consequence it might be advisable to avoid centralized repositories but rather shift primary sources of data onto individual user desktops. In case of an inspection, the forensic examination of individual computers might eliminate any need for interfering with key data resources on centralized systems. 95 Once the actual inspections starts, it is recommended to have each officer accompanied by a "shadow" (member of staff of the undertaking or preferably the 90 Regulation No. 45/2001 of 18 December 200 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [2001] L8/1. 91 See for example: Maclay Murray & Spens LLP, MMS Smartguides, Guide to Dawn Raids < (MMS); Pinsent Masons, Competition Law Dawn Raid Checklist & Guidelines < (Pinsent Masons); Linklaters, Dawn Raid? < all accessed 30 November Pinsent Masons (n 91). 93 Ibid. 94 Ibid. 95 Casey, Eoghan, "Dawn raids" bring a new form in incident response [2009] Digital Investigation 5, 73.

13 55 Juridicum Law Review Vol 1:1 advising law firm) in order to safeguard the undertaking's rights. The "shadow's" main task is to note down carefully but within reason what the official does (including files examined, questions asked and search terms used). 96 Additionally the "shadow" needs to point out that certain documents might not be falling under the scope of the inspection. In general, the undertaking should make sure that it obtains copies of all copied documents and data. This is important in order to prepare a proper defense strategy in a possible upcoming competition law case. One member of staff should act as preferred contact point for questions. 97 As obstruction policies may lead to horrendous fines, undertakings should always act cooperatively. In addition to the documents and the data requested the undertaking is entitled to draw attention to other records that might help to clarify the matters raised. 98 VII. Legal Protection & Remedies The following section will focus on the legal protection and available remedies for the undertaking. a. Article 20 (3) written authorisation Due to the voluntary nature of such an inspection, there is no right to have the written authorisation reviewed by Court. Judicial review can only be granted by way of legal means within the main proceedings of a competition law infringement case. 99 b. Article 20 (4) formal decision and Article 21 decision on inspections of other premises The undertaking has the right to have the decision of the Commission reviewed by the European Court of Justice (ECJ) by bringing an action for annulment according to Article 263 TFEU. 100 In case the decision is declared void by the Court, all of the obtained data and documents have to be returned to the undertaking and the collected data must not be used in any proceeding. 101 If not the decision but the behaviour of the officials itself (e.g. using their powers in an arbitrary, excessive or disproportionate manner) is subject to criticism, no action can be brought against the decision. The undertaking can only seek judicial review within the main proceedings. 102 In case the Commission also rules formally on the obligation to present certain documents or issues fines or periodic penalty payments, an action for annulment is also admissible. 103 c. Article 22 - investigations by competition authorities of Member States 96 MMS (n 91). 97 Pinsent Masons (n 91). 98 Explanatory note (n 22) Recital Jaeger (n 14) para Art 263 TFEU. 101 Case C-94/00 Roquette Frères v Directeur general de la concurrence de la consummation et de la repression des fraudes [2002] ECR I Jaeger (n 14) para Art 263 TFEU.

14 56 Juridicum Law Review Vol 1:1 As regards all investigations conducted by national competition authorities of Member States, the national system of legal protection applies. This is also the case for all kind of coercive measures carried out by national police officers. VIII. Fundamental Rights Issues The Right to Privacy This section will discuss the compatibility of the Commission s powers with fundamental rights. As the most draconian of all investigative powers, inspections can be especially controversial when judged against the fundamental right to privacy. Article 8 of the European Convention on Human Rights (ECHR) protects the private and family life, home, and correspondence of anybody. 104 In Niemetz v Germany, the European Court of Human Rights has held that Article 8 ECHR also extends to business premises. 105 Derogations from this right are only justifiable when necessary in a democratic society, inter alia for the economic well-being of the country or the prevention of a crime. All interferences must further be in accordance with the law. 106 To establish whether a measure is in accordance with the law, it must meet a three part test: the measure must be based on domestic law, it must be accessible and its consequences must be foreseeable and compatible with the rule of law. 107 Applying this test to inspections, one has to say that the criteria can easily be fulfilled. All measures have their legal basis in European Union law (Article 101 or 102 TFEU and the Regulation No. 1/2003) and European Union law forms part of domestic law beyond controversy. 108 As the Regulation as well as the Case-law from the Community is published in the Official Journal of the European Union it is further easily accessible. The Regulation also provides clear information on the conditions for inspections as well as on the consequences. 109 Additionally the inspections pursue the legitimate aim of maintaining free competition. As the European Court of Human Rights (ECtHR) has ruled, this falls within the scope of the public interest exception of economic well-being of the country. 110 The key question however is whether the inspections are necessary in a democratic society. This refers to the proportionality of the measures in relation to the pursued aim. In Société Colas Est and Others v France the ECtHR has stated that, in competition cases, prior to conducting inspections, judicial authorization is required in order to provide adequate and effective safeguards against abuse. 111 The ECJ later however ruled that judicial authorization is only necessary if required by the 104 European Convention on Human Rights (ECHR) Art Niemetz v Germany [1993] 16 EHRR 97, para Art 8 (2) ECHR, See also Chalmers (n 6) Imran Aslam and Michael Ramdsden, EC Dawn Raids: A Human Rights Violation? (2008) 5(1) CompLRev 61, Ibid. 109 Ibid. 110 Sociéte Colas Est and Others v France (Application no /97) [2002] ECHR Sociéte Colas Est and Others v France (Application no /97) [2002] ECHR 418, para 49; See also Chalmers (n 6)

15 57 Juridicum Law Review Vol 1:1 Member State in which the inspection was due to take place. 112 This was later also codified in the Regulation No 1/ As a judicial warrant has not to be obtained in all cases, this is however still argued to probably be falling short of the requirements for derogation as set out by the case law of the ECtHR. 114 Another fundamental right concerned is the privilege against self-incrimination, as set out by Article 6 ECHR and already mentioned above in section III.e. IX. Consequences Beyond Legal Penalties Loss of Reputation The aspect to be dealt with in this final section is market induced punishment. It is often overlooked that dawn raids might not only lead to further legal consequences, e.g. cartel law case convictions or infringe fundamental rights. There are also additional severe economic consequences for the undertaking. Research has shown that the most severe penalties for eventual competition law infringements are actually not the legal penalties but market-induced reputational penalties. 115 A survey on Dutch listed firms targeted by competition authorities from 1998 to 2008 concluded that on average, firms lose 2.3 percent of their market values when an antitrust investigation is uncovered. 116 Most interestingly, the actual fines imposed by the legal system only contributed to 12 % of this total value loss, whereas 55% are explained by the lost conspiracy-generated profits and the rest of 33% is made up by reputation loss. This data should be of big importance to the competition authorities and especially the Commission. An optimal penalty policy should arrange for fines that are large enough to make the infringement unprofitable when the undertaking is found guilty. Often experts therefore argue that the financial sanctions imposed should be much higher than the actual fines. 117 However those usually focus solely on regulatory and legal penalties and forget to take other consequences into account. Typically customers, suppliers and stakeholders might think differently about doing business with an undertaking that has been found guilty or is suspected of committing an infringement. 118 Huge drops in brand value occur. As regards the different stages of an investigation procedure, three main events have been identified that may have an effect onto the market and the share price of the undertaking: First, the inspection itself, the statement of objections (made by the Commission in case reasonable suspicions for infringements exist after the investigation) and the final decision. The study mentioned above has revealed that the notice of the actual inspection has the greatest impact on stock value with the final decision not being all too important any more. 119 This means that a 112 Case C-94/00 Roquette Frères v Directeur general de la concurrence, de la consummation et de la repression des frauds [2002] ECR I-9011, para Art 20 (7) (8) Reg 1/ Chalmers (n6) E.g. Stijn Van den Broek, et. al. Reputational Penalties to Firms in Antitrust Investigations (2012) 8 (2) Journal of Competition Law & Economics Ibid Ibid Ibid Ibid 239.

16 58 Juridicum Law Review Vol 1:1 reputational loss usually already occurs in the very moment the conduction of an inspection goes public. By all means this must be seen critical as at this moment it is still not clear whether an actual infringement has occurred or not. The undertaking might not have done anything wrong but still suffers a drop in market value. This should always be taken into account when an inspection is ordered. X. Conclusion The aim of this paper was to provide a general outline on the topic of dawn raids in form of inspections - conducted by the European Commission. The regulatory frameworks as well as the specific powers have been explained. This was followed by more practical sections on procedural issues, fines, coercive measures and best practice tips. Special attention however was granted to the fundamental right to privacy and economic consequences beyond legal penalties. Especially those last points should be kept in mind when talking about inspections. Inspections might be the most effective tool in competition law enforcement. They should however by no means used excessively. As discussed, the reconcilability with the right to privacy is still regarded as controversial in some cases. Furthermore, the fact that inspections can have severe financial consequences due to reputational loss should always be kept in mind. Those consequences occur whenever a dawn raid is conducted, even if the undertaking concerned is not to be found guilty. Especially undertakings under legal obligations to release press statements about ongoing investigations can be at risk of getting punished without committing any infringement.

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