Revised explanatory note on EU Commission inspections published

21.09.2015

 

On 11 September 2015, the European Commission (Commission) has published a revised version of its explanatory note on unannounced Commission inspections pursuant to Article 20(4) of Regulation (EC) No 1/2003 replacing the previous version of 18 March 2013. The note describes how the Commission conducts on-site searches of undertakings investigating potential breaches of European antitrust provisions. In particular, the Commission provides undertakings with further guidance on searches of IT-systems, including the treatment of data yet to be searched and of the selected (final) data. The revised explanatory note shows that the Commission continues to interpret the scope of its investigative powers broadly. In detail:

  • Already in the recent past, the Commission focused on the search of IT-systems during inspections because nowadays the vast majority of business documents is electronically saved. Already the 2013 version of the explanatory note indicated the Commission’s adaption to the “modern world” by stating that the Commission would search storage media. The revised 2015 version clarifies that the inspectors may search servers and extends the search of storage media to external hard discs, backup tapes and cloud services. According to the revised note, this approach applies also to private devices and media used for professional purposes.
  • In case the Commission has not selected all of the relevant documents at the envisaged end of the inspection, it will place a copy of the data set yet to be searched in a sealed envelope. Undertakings can request a copy of this set of data. The Commission may either bring the sealed envelope to the Commission’s premises and invite the undertaking to be present during the opening of the envelope and the continuing review of the data (unless the Commission decides to return the data) or the Commission will ask the undertaking to keep the envelope at a safe place on the undertaking’s premises in order to continue the search at a later time.
  • At the end of the inspection, the Commission will add the final data to the case file and will provide the undertaking with a data carrier on which the data is stored. The undertaking needs to sign the printed list of the final data received. The revised note clarifies that the Commission will list and store each evidence item selected in its technical entirety, e.g. a selected email will be listed and stored with the corresponding attachments.

Conclusion

Against the background of the revised note, it is in particular advisable that undertakings request a copy of the data retained in the sealed envelope from the Commission. Moreover, undertakings should offer the Commission to keep the sealed envelope at a safe place on the undertakings’ premises in case the inspection has to be continued in order to avoid sensitive data being taken out of the undertaking’s sphere.

The Commission’s broad approach, such as regarding the search of private devices and media used for professional purposes, raises concerns in view of the right to respect for private life (Article 8 ECHR, Article 7 EU Charter of Fundamental Rights) as well as in view of the EU data protection Regulation (EC) No 45/2001, even though the Commission holds that all personal data will be processed in accordance with this Regulation.

In any event, undertakings should train their personnel, in particular IT staff, on how the Commission conducts on-site searches. Not complying with the Commission during inspections could be regarded as obstruction of the investigations and the Commission has imposed severe fines for this in the past. Moreover, undertakings also have to assess whether their dawn raid manuals and checklists are in line with the Commission’s practice of conducting inspections. Finally, specific legal issues will need to be taken into account and the respective contracts should be reassessed if undertakings have outsourced their IT systems and make use of external service providers such as cloud services.

The Commission’s revised explanatory is available here.

 

Any questions? Please contact: Sebastian Janka
Practice Group: Antitrust & CompetitionComplaince & Investigations 
Further reading: German FCO publishes guidance document on identifying bid-rigging agreements