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Guidelines

For inspection by Portuguese Competition Authority (PCA)

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What documents must the officials present?

Portuguese Competition Authority (PCA)
 

  • The Portuguese Competition Authority (“PCA”) officials must present a search warrant issued by a judicial authority and a written authorization of inspection issued by the PCA. 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 PCA officials wish to search in private homes or other private places, premises, land or vehicles, 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?

Portuguese Competition Authority (PCA)
 

  • The PCA officials are entitled to search all rooms, as well as all other premises, land, vehicles, devices or equipment belonging or allocated to the company, as set out in the documents presented 
    [see above 1. (2)]. You may not deny the officials access to any such premises.
     
  • The PCA officials may not use force against persons or property, e. g. they may not break into locked rooms or cupboards, without the assistance from the police. However, they are entitled to request that locked rooms, cupboards or similar be opened. If a PCA 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 PCA officials are also entitled to ask questions (see below at 4.).

What may the officials search?

Portuguese Competition Authority (PCA)

Most important

Never voluntarily surrender any objects or documents. Always insist on a formal seizure. However, do not resist formal seizure.

Documents

  • In general, the PCA officials are entitled to inspect and to copy all documents (including company books and records, as well as access to any other information accessible to the company), as set out in the documents presented (see above 1. (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 documents 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 above 1. (2)]
    • Correspondence between the company and an external lawyer who is admitted in the Portuguese Bar Association or that of another Member State
    • 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
    • Correspondence between the company and an internal lawyer who is admitted in the Portuguese Bar Association or that of another Member State
       
  • If the PCA 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.

IT and electronic documentation

  • Upon request you must give the PCA 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. The officials may make use of their own forensic IT software and/or hardware. However, the PCA officials may not seize computers or other objects, but only make electronic copies.

    Beware: always make one additional copy of such electronic documents for the external lawyers.
     
  • 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 PCA officials check each file rather than copying the entire storage medium.
     
  • If the selection of the relevant documents for the investigation is not finished (or not carried out at all) during the inspection on the company's premises, the PCA officials may take with them in a sealed envelope a copy of the data still to be searched for subsequent examination. Search can be pursued before the investigating judge (namely, for the opening and validation of the evidence) and/or at the PCA’s premises or any other premises the PCA considers appropriate, e.g. at the company’s premises (as long as the company is notified of the act of seizure and the PCA returns the items collected).

Seals

The PCA 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?

Portuguese Competition Authority (PCA)

The PCA officials are entitled to request explanations or inquire all employees. The employee must bear in mind that he or she may be held personally liable under Portuguese 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 PCA 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.

  • Questions about personal details (incl. profession) must be answered.
     
  • Ask the PCA 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.
     
  • 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.
     
  • If the PCA officials request you to sign an official transcript of the questions asked and answers provided by you, carefully read the wording of the transcript and, before signing it, let the officials know your reservations or request that the necessary changes to the text are made so that it effectively reflects your statements.
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