In order to discharge its duty as the enforcer of the EU's competition rules, the European Commission has a range of investigative powers, including the power to request information from any person or any document or information that it considers relevant for its investigation.
For companies that are raided as part of an EU investigation, the EU's investigators can examine books and business records (both paper and electronic), take away copies, and in some instances, original documentation. The Commission has emphasised in recent guidance, the powers that it has to search IT environments including storage media (laptops, desktops, tablets, mobile phones, CD-ROMs, DVDs, USB-keys, etc) and hardware. In addition, companies are under a continuing and active duty to find documents requested by the Commission.
The EU's highest court this week dismissed a challenge to the Commission's dawn raid powers by French cable manufacturer, Nexans. Nexans was a defendant (found guilty and fined) in the high voltage power cables cartel.
It challenged the decision authorising the raid by the Commission on the basis that it was too broadly framed: the authorising decision stated that the cartel "probably had a global reach". According to Nexans, this was insufficiently specific in terms of geographic scope and meant that the Commission's investigative powers were not subject to proper scrutiny. The Court dismissed the appeal in its entirety. "Contrary to what [Nexans claims], the Commission was not, during its inspection, required to limit its investigations to documents relating to the projects which had an effect on the [EU] Common market…. Taking account of the suspicions concerning an infringement which had global reach, even documents linked to projects located outside the EU were likely to provide relevant information …"
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