This blog on the Bristows site is a good read.
I was actually chatting to Gary Foster in my team about this and the point about increased competition activity is very relevant to his recent article, which can be found here if you wish to take a read.
In this piece Gary explains: “This is not entirely surprising, given those authorities were trying to navigate the new challenges caused by COVID-19 throughout 2020. Recent comments attributed to competition authorities signify that this activity is set to increase throughout 2022 and beyond. In 2021, the commissioner for competition from the European Commission, Margrethe Vestager, and Andreas Mundt, the president of the Bundeskartellamt, signalled their intention for restarting dawn raids. Mr. Mundt proclaimed “the relaxed time for cartel offenders is over. We are on the road again.”
And I agree. We’ve seen personal mobile phones in scope for investigation if there has been evidence that non work systems (WhatsApp etc) have been used on the device to discuss work issues. This highlights the ongoing importance of keeping work chat on work systems only to ensure that all personal devices are out of scope. Something that is getting harder and harder to police in our new remote working world.
We’ve certainly seen an increase in the use of personal devices and non work-related systems being used to discuss work since the pandemic. Companies simply don’t have adequate remote working solutions, not least because many were set up in haste purely because employees ‘had to find a way’ to continue working when the pandemic hit. Two- and a-bit years on though, this HAS to change.
We’re having conversations with clients right now about updating their dawn raid policies and protocols, as well as making sure employees are aware of what might happen at potential home visits. They will need to know how to mitigate risk, which IT systems are available and adequate for employees to use from home, and what to do if a regulator turns up at their home.
On that topic by the way – i.e. if the regulator turns up at an employee’s home- you will find plenty of tips in Gary’s article linked above.
It also serves as a stark reminder to individuals that personal devices and domains fall within the remit of a competition authority’s powers to review in the context of a competition investigation where they are used, however infrequently, for work purposes.