When investigating violations of competition law, the Belgian Competition Authority ("BCA") can carry out unannounced on-site inspections at the premises of undertakings, associations of undertakings and natural persons. Such inspections are known as dawn raids. Before launching an inspection, the BCA provides guidelines to the undertaking concerned, setting out the applicable procedure. The BCA has now decided to codify these guidelines and make them public.
The following points should be noted:
- In the guidelines, the BCA notes that it can start the inspection as soon as the undertaking concerned receives the orders issued by the competition prosecutor (auditeur/auditeur) and the investigating magistrate. It is not obliged to await the arrival of external counsel. In practice, however, the BCA will usually wait 30 minutes in order to allow external counsel to reach the premises.
- Electronic data and documents are increasingly crucial when it
comes to proving potential violations of competition law. The
guidelines explain in detail the methods the BCA applies to search
for such documents and data.
The guidelines provide much-needed insight into the various methods used to search for electronic documents and data during a dawn raid and appear to apply the best practices for seizing digital data established by the Brussels Court of Appeal in its judgment of 18 April 2013. Pursuant to this judgment, the documents must be selected in the company's presence. Secondly, the selection should be made using keywords, which should be closely connected to the practices under investigation. Hence, general keywords covering a wide array of subjects are not allowed. In addition, the selection of documents on the basis of keywords should be double checked using another set of keywords and spot checks. Finally, the company should be given sufficient time to review the selection, taking into account the complexity of the case. The prosecutors should permanently delete documents deemed to fall outside the scope of the investigation.
- In the guidelines the BCA expressly recognises that the attorney-client privilege extends to opinions issued by in-house counsels, who are members of the Instituut voor Bedrijfsjuristen/Institut des juristes d'entreprise.
Click here to view the guidelines in full.
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