As the guidance was released relatively soon after the General Court’s rulings on the Nexans and Prysmian cases, which partly concerned “fishing expeditions” by the Commission, i.e. groundless and untargeted investigations, the changes can be seen as responding to those decisions. In those cases, the General Court sanctioned certain data searching practices using information technologies.
In the guidance, the Commission states that, pursuant to applicable EU legislation, its inspectors are empowered to enter the undertaking’s premises, land and means of transport, to examine the books and other records related to the business and to ask any representative or member of staff for explanations of certain facts, documents, etc. The Commission also stated that the undertaking may consult a legal adviser during the inspection but that the presence of a lawyer is not a legal condition for the inspection’s validity. Moreover, the undertaking may not impede the inspection by arguing that their lawyers have not yet arrived. In extreme cases, undertakings could be penalized by the Commission for any unreasonable delay.
The explanatory note further specifies the inspectors’ powers during an inspection of the undertaking’s IT environment and various storage media, such as laptops, desktops, tablets, mobile phones, CD-ROM, DVDs, USB flash drives, etc. In this regard, the Commission states that in addition to using any built-in (keyword) search tool it may also use its own dedicated software and/or hardware (“Forensic IT Tools”). Naturally, the undertaking has the obligation fully and actively to cooperate with the inspection, which includes such tasks as temporarily blocking email accounts, disconnecting running computers from their network and providing administrator access rights. The guidance also expressly states that the inspectors are entitled to keep the undertaking’s storage media until the end of the inspection, at which time the inspectors are obliged to “cleanse” all data on the undertaking from the Forensic IT tools used in the inspection. Here it should be mentioned that the undertaking is entitled to receive a copy, in electronic or paper format, of all the documents and data copied and may also request a signed list of all copies and extracts taken during the inspection.
Lastly, the Commission expressly addresses situations where the selection of documents or other data relevant for the investigation cannot be completed during the dawn raid. In those cases, a copy of the data still to be searched is placed into a sealed envelope and taken by the investigators. The Commission then commits either to return the sealed envelope to the undertaking or to invite the undertaking’s legal representatives to attend the opening of the envelope at its premises.