On 11 September 2015, the European Commission (the Commission) published a revised version of its ‘Explanatory note on Commission inspections pursuant to Article 20(4) of Regulation 1/2003’. This note is handed to companies when the Commission carries out dawn raids. It provides guidance on the Commission’s approach to the conduct of these inspections and is therefore relevant to the compliance efforts of companies in all sectors.
The European Commission previously updated its explanatory note in March 2013, following its decision in EPH and the General Court’s judgment in the Nexans case, which related to the Commission’s practices when conducting dawn raids.
The revised note provides companies with clearer guidance and a better understanding of the inspection process. Below we set out the key changes.
The latest version of the explanatory note provides certain clarifications and further guidance with respect to software and data. It reminds companies of the significant role that IT now plays in the context of the European Commission’s evidence gathering powers in relation to potential anti-competitive behaviour.
The main changes relate to IT, procedures and data protection. They are found in paragraphs 10, 14 -16 and 20-21:
- Paragraph 10 states that Commission officials can search the entirety of the firm’s IT environment and all storage media, including cloud services and backup tapes. The explanatory notes clarifies that this also includes private devices and media used by individuals for professional reasons.
- Paragraph 14 explains the Commission’s procedure if the selection of documents relevant to the investigation was not completed at the end of the inspection period. In particular, in this case a copy of the data may be collected and placed in a sealed envelope to be searched at a later date. The Commission may invite the company to be present when the sealed envelope is opened and during the continued inspection process at the Commission’s premises.
- Paragraph 15 clarifies that once the final data is selected by the Commission for its case-file during the inspection, or following a continued inspection in its premises, the company will receive a DVD where all the data will be stored together with a signed copy of the index of its contents.
- Paragraph 16 explains that evidence selected during the inspection process will be collected and listed in its technical entirety (if for example only one attachment to an email is selected, then the final export will consist of the cover email, along with all attachments that belong to that particular message). However, when the evidence is placed in the case file, the Commission may separate each evidence item into component parts (eg cover email, attachments) and list them individually with unique document reference.
- Finally, in paragraphs 20 and 21 the Commission clarifies that, while the Commission processes personal data in compliance with EU data protection rules, and such data is not the target of inspections, personal information may be contained in business documents related to such inspections /investigations and may therefore be obtained and copied during the inspection and be part of the case file. Such personal data can only be used for the purpose for which they were collected (ie the enforcement of Articles 101 and/or 101 TFEU) and will be processed in compliance with Regulation 45/2001.
The Commission’s revised explanatory note will be welcomed by companies' counsel and IT teams as it provides a clear guidance and more transparency regarding its procedures when conducting dawn raids and searching data on-site. However, it goes without saying that companies should ensure that legal experts are present during these dawn raids, in order to ensure that the Commission’s practices and its powers are properly exercised.
For more information contact Dimitris Sinaniotis on +44 (0)333 006 0497 or dimitris.sinaniotis@TLTsolicitors.com
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com