Guidelines

• The officials are entitled to examine and copy any company documents which relate to the subject and purpose of the inspection as described in the certified copy of the engagement order issued by the Competition Prosecutor.
• The following documents may not be inspected, copied nor seized by the officials:
  • The correspondence between the company and one of its independent external lawyers provided that the latter is registered with a European Bar (attorney’s “legal professional privilege”(LPP)).
  • Any internal documents only reflecting and/or containing legal advice covered by the attorney’s LPP or documents, which are prepared with a view to obtaining such advice.
  • Legal advice issued by the in-house counsel registered with the “Instituut voor de Bedrijfjuristen/Institut des juristes d’entreprise” (IBJ/IJE) to its employer, but also the prior correspondence containing the request for advice, correspondence exchanged with respect to such a request, draft opinions, as well as the preparatory documents for the advice (LPP attached to legal advice from in-house counsel). The advice, however, loses its confidential nature if the employer communicates this document and its content to a person outside the company.
  • The documents which are not covered by the scope of the engagement order and the search authorisation (“out of scope” documents).
• Only the copies of documents that are not contested by the company are immediately accessible to the officials. Disputed documents shall be sealed for further processing by a third-party staff member of the Investigation and Prosecution Service and, in the event of continuing disagreement as to their qualification, for possible appeal to the President of the BCA.
• The company receives a copy of all the copied documents and a list identifying them. This procedure is recorded in minutes at the end of the inspection with any observations or reservations expressed by the company.

• Part of the officials’ search may be conducted in the IT environment, notably via the use of specialised software. The principle remains that officials may only access electronic documents, which fall within the scope of the engagement order, and which are not covered by LPP.
• If the selection of relevant items is made based on keywords, these must be listed in an appendix to the inspection minutes and must be related to the object of the inspection. Make sure that this is indeed the case.
• At the end of the inspection, three copies of the selected data are generated (two are sealed and taken away by the officials and the third is given to the company). The company then has at least 10 business days to submit a list of “out of scope” and “LPP” documents that are part of the sealed documents, with a brief justification.
• If the selected data is subject to onsite review in the presence of representatives of the company involved, the BCA and the company each receive an unsealed copy of the “in scope” electronic documents.

The officials may affix seals for the duration of their mission and insofar as it is necessary for the purposes of their mission, without, however, being allowed to exceed 72 hours when it concerns premises other than the premises of the company.

If you consider documents or data copied during the inspection to be confidential, you should inform the Competition Prosecutor within 10 working days of the date of completion of the search and request a period of time in which to provide a non-confidential version or summary of the documents or data concerned. In this case, the Competition Prosecutor will grant a deadline of at least 2 months, which may be extended. Otherwise, the documents or data concerned will be considered as non-confidential.

• The officials can ask for explanations about facts or documents related to the object and purpose of the engagement order, as well as concerning the internal organisation of the company, the working methods and the division of responsibilities. In this case, make sure that the interviewee has been personally informed about the purpose of the inspection.
• Do not answer any question if the answer would incriminate your company or yourself personally.
• Responses may be recorded in writing or electronically. Where responses are recorded electronically, either the content of the recording is transcribed into a report, a copy of which is given to the interviewee, or a copy of the recording is provided to him.
• Read the minutes carefully. If necessary, state your reservations.