An interesting write up, available through Law360, by Bonnie Eslinger looking at a recent ruling where Nexans SA challenged the way the European Commission carried out a raid and sought a reduction in their fine. Undertaking raids, as well as more formal document requests are a process that the European Commission, as well as other regulators around the world, carry out to gain evidence and intelligence to support their cases. Companies should be prepared to react in the right way if this happens and ensure they manage their own review of the data that was captured in an efficient and effective manner.
The decision affirms the European Commission's right to conduct these activities and the way that they do them, performing much of the work off-premises. I cannot comment on the legal arguments for or against this decision, but it is important to recognise that you could be subject to such activity.
If that happens, it is important to react in the correct way, this means from a legal, technological and practical perspective. This could include monitoring what and how the raid is being conducted, ensuring that it does not exceed the limits of what is allowable; detailing what data is being captured; and ensuring that any appropriate safeguards are considered.
We regularly are engaged by clients to help respond to these sort of situations, ensuring that we understand the data captured, how it was captured, and then looking to re-perform the exercise to allow the client to know what was captured, analyse it as quickly as possible and take legal and business decisions in an informed way based on the data.
We have worked on many cases where this has been a vital element of how a company responds to such an event. In addition, we have performed preparation training and mock raids with clients to ensure they know what is coming and how to respond. If you'd like to know more please let me know.
Affirming a 2018 decision by the bloc's General Court, the ECJ ruled Thursday that EU competition law allows the enforcer to make copies of documents and data related to a business, "irrespective of the medium on which they are stored." The EU legislature also gives the commission "a certain discretion" over its examination procedures, the ECJ added, so Nexans' argument that competition law doesn't expressly refer to the possibility of making such copies is "irrelevant." "The commission may therefore, depending on the circumstances, decide to examine data ... not by reference to the original, but by reference to a copy of that data," the ECJ stated. Additionally, the company's rights are safeguarded in situations, like the raid on Nexans, where the commission copied data and then later assessed what information was relevant, putting those documents in a file and deleting the remainder, the ECJ said.