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Guidelines

For inspection by Italian Competition Authorities.

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What documents must the officials present?

Italian Competition Authorities
 

  • A company may be searched by officials of the Competition Authority or the Financial Police who have been authorised by the Competition Authority. The officials must present a written warrant issued by the Competition Authority.
  • Read the warrant very carefully and check:
    • Is our company the addressee?
    • What accusations are being raised against our company (subject matter of the inspection)?
    • Where may the officials search?

Where and how may the officials search?

Italian Competition Authorities
 

  • In general, you are obliged to give the information requested by the officials (however, see "Who may be interviewed by the officials and how?"). You have the right to be assisted by an advisor but you cannot ask for the inspection to be suspended until his or her arrival.
  • The inspection can extend to all business premises, cupboards, desks, safes, cars, IT systems, but not to the domicile or residence locations not related to the activity of the company under inspection.
  • The officials may not use force against persons or property, e.g. they may not break into locked rooms or cupboards, nor they may perform body searches without a written warrant duly signed by a Public Prosecutor or by the Court. However, even without a warrant, they are entitled to request locked rooms, cupboards or similar to be opened. If an official asks you to open a cupboard or similar, do so, but first ask what he or she is looking for and give this to him or her yourself.

What may the officials search?

Italian Competition Authorities

Most important

  • Never voluntarily surrender any objects or documents. Always wait for a formal request.
  • The officials may also seize "random finds". These are objects not related to the subject matter of the current investigation. The officials are not allowed to search systematically for random finds.

Documents

  • The officials may inspect documents and take copies of them, even if they contain business secrets. Documents may be seized only if their content cannot be reproduced in the records. Important: always make one copy of such copied or seized documents for the external lawyers.
  • The following documents may not be read, seized or copied by the officials:
    • private documents in so far as they 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;
    • 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) or internal company documents only reflecting and/or containing legal advice given by external lawyers as described here above.
  • If the officials want to inspect such privileged documents, only show those parts of the documents which prove their privileged character. If the privileged character of certain documents is contested, request these documents to be placed in sealed envelopes/boxes until a final decision as to their character is made.

Computer

  • In general, the officials may make electronic copies of computer files. Only Financial Police Officials are entitled to seize computers and other objects. Then request that computers are left at the company. Grant access to computer files by providing passwords. Important: take note of all computer files which the officials make copies of or make electronic copies of all files which they take away.
  • If appropriate, inform the officials that privileged documents are saved on the computer (or the respective storage medium) which may not be copied (see above). In this case request that the officials check each file rather than copying the entire hard disk.

Records of the inspection / Seals

  • Before leaving the premises, the officials must draft records of the inspection containing your statements, the list of the documents copied or seized and a brief description of the activity carried out during the inspection. You have to sign the minutes and are entitled to obtain copy of it. Important: do not sign the records before having consulted the external lawyer.
  • The officials are entitled to seal inter alia premises, rooms, cupboards and documents, for example if an inspection lasts several days. Do not break the seal under any circumstances. Breaking a seal is a criminal offence.

Who may be questioned by the officials and how?

Italian Competition Authorities

The officials are entitled to request information from all employees attending the inspection. Each interviewee must bear in mind that he/she might be personally held liable under Italian law.

  • Ask that you only be questioned in the presence of an external lawyer. Explain to the officials that only the management is entitled to give statements on behalf of the company.
  • 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.

  • Questions about personal details (profession, role in the Company, etc.) must be answered.
  • 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 your company or yourself personally under national law.
  • Answer only questions actually relating to the 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.
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