Guidelines
For inspection by Montenegrin Competition Authorities
What documents must the officials present?
Montenegrin Competition Authorities
- In order to search a company the officials of the Montenegrin Agency for protection of competition (hereinafter: “APC”) are required to present the APC’s decision on carrying out of the inspection in the particular company, signed by the Director of APC and their business ID.
- Read the APC’s decision on carrying out of the inspection very carefully and check:
- Is our company the addressee?
- Which accusations are raised against our company (subject matter of the investigation)?
- Where may the officials search?
- If you are not presented with a document as mentioned under (1), object to any inspection.
Where and how may the officials search?
Montenegrin Competition Authorities
- The officials are entitled, within the scope of the relevant search document (1(1)), to enter and search business premises, vehicles, land and other property in the seat of the company and in other places where the company performs its business activity.
- Please note that the APC’s officials are allowed to perform the inspection with the support of the police and to use force if you illegitimately try to hinder the conduct of the inspection. Therefore, cooperation is recommended. However, you are not obliged to actively assist the inspection.
- The officials are obliged to allow the representative of your company to be present during the inspection of business premises. However, you have to make the request already at the beginning of inspection, because the officials are not obliged to wait.
- Ask the officials to wait until a competent person from the legal department or an external lawyer has arrived before they start the inspection (the officials are not obliged to follow such request).
What may the officials search?
Montenegrin Competition Authorities
- Never voluntarily surrender any objects or documents. Never destroy or hide any objects or documents. If something is seized ask for formal evidence on seizure: (i) conclusion on seizure addressing particular documents and objects that are being seized, issued by an official and (ii) appropriate remark in the protocol on inspection, drafted by the officials during the inspection.
- The APC’s official may (i) inspect financial and other documentation, (ii) scan and make copies of business documentation, (iii) seal the business documentation during the inspection and (iv) seize business documentation and other objects found during the inspection and keep it until the end of the proceeding, (vi) perform other activities.
- Since the officials are particularly allowed to seize documents if they were not able to make copies or scans, make sure that you provide them with the scan/copy machines upfront. If the documents are however seized, make copies of every document seized.
- The treatment of certain types of documents is different:
- business documents can be inspected, scanned, copied, sealed and seized,
- letters, notices and other correspondence between you and your attorneys may not be subject to the inspection procedure (privileged documents/files).
- Grant access to computer files by providing passwords and allow the officials to make electronic copies of computer files. The officials are also entitled to seize computers and other objects. Be sure that you always make an extra electronic copy of all computer files which the officials take away.
- If appropriate, inform the officials that privileged files are saved on the computer (or the respective storage medium) which may not be inspected since they are protected (see above). In this case request that the officials check each file rather than copying the entire hard disk.
- During the inspection an official has to draft the protocol on inspection which is signed by all persons attending at the end of the inspection and authenticated by the official in charge. After the inspection is over, but before you sign the protocol, ask for the copy of the protocol, read it carefully and object to the content if need be.
- The officials are entitled to seal all business premises, rooms and business documents, e.g. if an inspection lasts several days. Do not break this seal.
Who may be questioned by the officials and how?
Montenegrin Competition Authorities
The officials are entitled to examine and take oral and written statements from representatives of the company and all employees. If the written statement is required, the official is obliged to leave you the date until which the statement can be given. The representatives of the company have an obligation to provide information. When questioned, refer to the management on principle.
- Ask to be questioned only in the presence of an external lawyer.
- Request that the questions be asked only in a formal interview. All relevant questions and answers should be recorded in the protocol kept by an official and signed by an official and person interviewed. Make sure that all questions and answers are recorded during the interview. Request a copy of the protocol made by the officials. Sign the protocol only if it contains correct and complete records. Never sign any other document before having consulted the external lawyer.
- The officials may request any information requisite for conducting the investigation.
- Answer only questions which are actually related to the purpose of the inspection. Answer only the questions asked. Give short and precise answers. Tell the officials if you do not know the answer to a question. Do not make any assumptions.