In the course of its antitrust investigations, Commission officials may conduct surprise inspections of corporate premises (commonly known as "dawn raids"). The Commission has issued an Explanatory Note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003 to clarify the extent of its powers and the rights and obligations of investigated parties. On 11 September 2015, the Commission issued a revised version of its Explanatory Note. Not much has been changed and, for the most part, the Commission has confirmed its practices.
In particular, the Commission has now specified that IT environment searches may cover external hard disks, back up tapes, and cloud services, something which has been the case in practice. The Explanatory Note now also makes it clear that such searches may cover private devices and media that are used for professional reasons, and which are found on the premises (para. 10).
The revised Explanatory Note further expounds on the handling of data. It sets out what is to happen, at the end of the inspection, to collected data that has yet to be searched (para. 14). The data will be placed in a sealed envelope. The undertaking may then be invited to the Commission's premises to open the sealed envelope and the inspection process will be completed at the Commission premises. Alternatively, the Commission may ask the undertaking to keep the envelope for safe-keeping until a further date in order to allow the Commission to later continue the search process at the premises of the undertaking. The undertaking will also receive a duplicate data carrier of the final data set collected (para. 15). Moreover, the undertaking will have to sign a list enumerating all data items. Each evidence item will be collected in its entirety; this covers any attachments to emails. Such collated data will then be separated out into individual items and listed accordingly (para. 16).
Lastly, the revised Explanatory Note expands on the application of data protection legislation to any personal data gathered during the inspection (para. 20). Notably, it specifies that any personal data contained in business documents may only be used for the purposes of antitrust enforcement under Articles 101 and 102 TFEU (para. 21).
A full copy of the revised Explanatory Note is available at: http://ec.europa.eu/competition/antitrust/legislation/explanatory_note.pdf.
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