EU Guidelines
For inspection by European Commission.
What documents must the officials present?
European Commission
- In order to search a company the officials must present a written inspection decision from the European Commission and hand over a certified copy of it. If the officials merely present a written authorization of inspection, you are not obliged to submit to the inspection. In this case, contact the legal department or the external lawyer before taking any further steps.
If the officials search in private homes or private cars a search warrant issued by a court is required. - Read the documents very carefully and check:
- Is our company the addressee?
- Which accusations are raised against our company (subject matter of the inspections)?
- Where may the officials search?
Where and how may the officials search?
European Commission
- The officials are entitled to search all rooms, cars and other premises as set out in the documents presented. You may not deny the officials access to any such premises.
- The officials may not use force against persons or property, e. g. they may not break into locked rooms or cupboards. However, they are entitled to request that locked rooms, cupboards or similar be opened. If an official asks you to open a cupboard or similar, do so, but first ask what he/she is looking for and give this to him/her yourself.
- The officials are also entitled to ask questions (see "Who may be questioned by the officials and how?").
What may the officials search?
European Commission
- In general, the officials are entitled to inspect and to copy all documents as set out in the documents presented (see question "What documents must the officials present?" point (2)), even if they include business secrets. However, they may not seize originals, but are only entitled to make copies. Beware: always make one copy of such document for the external lawyers.
- The following documents may not be read or copied by the officials:
- Private documents in so far as those are of no significance as evidence.
- Documents which are not related to the subject matter of the investigation if the inspection goes beyond ascertaining that the document is covered by the subject matter (see question "What documents must the officials present?" point (2)).
- Correspondence between the company and an external lawyer who is admitted in an EU Member State, Norway, Iceland, Liechtenstein or Switzerland (i. e. correspondence with US attorneys is not covered).
- Internal company documents only reflecting and/or containing legal advice given by external lawyers as described above.
- Preparatory internal company documents that were drawn up exclusively for the purpose of seeking legal advice from external lawyers.
- If the officials want to inspect such privileged documents, only show those parts of these documents which prove their privileged character. If the privileged character of certain documents is contested, request that these documents be placed in sealed envelopes or boxes until a final decision as to the privileged character has been made.
- Upon request you must give the officials access to the IT environment and storage media (laptops, desktops, tablets, mobile phones, CD-ROM, DVD, USB-key, cloud services, etc.), when necessary by providing the passwords and/or administrator access rights or by carrying out further tasks demanded by the officials. The officials may make use of their own forensic IT software and/or hardware. Make sure no one interferes in any way with those measures taken by the officials. However, the officials may not seize computers or other objects, but only make electronic copies. Beware: always make one additional copy of such electronic document for the external lawyers.
- If privileged documents are saved on the respective storage medium the official are allowed to copy the entire storage medium without prior examination and then assess at European Commission premises whether the data is privileged and only place non-privileged data in the file and delete the remaining data from the copy.
- If the selection of the relevant documents for the investigation is not finished during the inspection on the company's premises, the officials will take with them in a sealed envelope a copy of the data still to be searched. Request a duplicate.
- The officials are entitled to seal inter alia premises, buildings, rooms, cupboards and documents, for example if an inspection lasts several days. Do not break the seal under any circumstances. Take suitable steps to ensure that the seal is not removed or damaged. Breaking a seal is a criminal offence and can lead to very high fines for the company.
Who may be questioned by the officials and how?
European Commission
The officials are entitled to request explanations from all employees relating to the purpose as set out in the documents presented (see question "What documents must the officials present?" point (2)). The employee must bear in mind that he or she may be held personally liable under national law.
- Ask to be questioned only in the presence of an external lawyer.
- Request that questions be asked only in a formal interview which ensures that questions and answers are recorded. Request a copy of all records made by the officials. Never sign any document before having consulted a lawyer. Sign the records only if they are correct and complete. If they are not correct or complete, insist that they are corrected.
- Explain to the officials that only the management is entitled to give statements on behalf of the company.
- Stay calm and keep to the facts. Do not behave aggressively.
- Ask whether you have the right to remain silent. Write down the answer. If necessary, ask for further explanation. If and to the extent you have a right to remain silent no answers should be given before an external lawyer has been consulted.
- Ask the officials if they can rule out further action being taken against you personally by a national authority. Write down the answer. If necessary, ask for further explanation. If the inspectors do not provide such confirmation, request to contact an external lawyer before you answer.
- Do not answer any question if the answer would incriminate yourself personally (under national law).
- Answer only questions actually relating to purpose of the inspection. Answer only the questions asked. Give short and precise answers. Stick to facts and do not comment from a legal point of view. Tell the officials if you do not know the answer to a question. Do not make any assumptions.