Home, but not alone: Commission may complete dawn raids from home

Therefore, in dawn raids where large volumes of data require processing, companies should be aware that the Commission could choose to take copies back to Brussels to continue its inspection there. The company’s counsel will need to be present during the assessment to ensure the Commission observes the rights of defence. In practice, this method may lead to longer and more exhaustive dawn raids. Additional costs resulting solely from the ‘move to Brussels’ should be reimbursed by the Commission based on a reasoned request from the company under investigation.

The dawn raid

As part of the power cables cartel investigation, the Commission conducted a dawn raid at Nexans’ premises. On the fourth and final day, the Commission made copies of an employee’s hard drive and took that data to its premises to assess its relevance to the investigation. The assessment that followed lasted for eight working days and took place in the presence of Nexans’ counsel. Nexans appealed the fining decision on a number of grounds, including that the Commission did not have the right to continue the investigation at its premises. The General Court rejected Nexans’ arguments, and consequently Nexans appealed to the ECJ.

The ECJ’s ruling

On appeal, the ECJ found that the Commission had the right to continue its dawn raid from its premises in Brussels. The ECJ considered that although not explicitly stated in law, such a right can be inferred from the Commission’s other powers of investigation. Conducting part of the inspection at the Commission premises does not infringe the company’s rights any further than continuing the dawn raid at the company’s premises.

However, the Commission’s choice to continue dawn raids at its premises is subject to limitations. The shift in premises must be justified, either by increased effectiveness of the inspection or by prevention of excessive interference in the operations of the investigated company. The Commission must agree to cover additional costs solely attributable to the shift incurred by the investigated company.

Practical implications

This alternative way of conducting dawn raids – partly at the company’s premises, partly at the Commission’s – will be relevant for cases where large volumes of data must be assessed. The prerequisite allocation of costs to the Commission should protect the investigated companies from cost increases based on the shift. However, in practice, dawn raids could become longer, giving more time to the Commission to assess the relevance of potentially incriminating documents. Additionally, counsel will need to keep a careful eye to ensure that the Commission properly observes the companies’ rights of defence in the Brussels setting.

This article was published in the Competition Newsletter of September 2020. Other articles in this newsletter:

• The ACM’s Green Deal: achieving sustainability via competition law?
• COVID-19 impacts level and payment of antitrust fines