Guidelines
For inspection by Romanian Competition Authority
What documents must the officials present?
Romanian Competition Authority
- Officials must present a certified copy or the investigation order issued by the president of the Competition Council together with the certified copy of the inspection order and the court authorisation. Also, the officials must present their credentials prior to the commencement of the inspection.
- Read the documents carefully and check:
- Is your company the addressee?
- What accusations are being raised against your company (subject matter of the inspection)?
- Where may the officials search?
Where and how may the officials search?
Romanian Competition Authority
- Immediately after the arrival of the officials, ask to consult your external lawyer or your legal department. Note that you have the right to be assisted by a lawyer during the entire duration of the inspection and that the lawyer may also be consulted by phone. However, the search may begin before the lawyer’s arrival.
- The inspection may be carried out: (i) in the premises, land or transportation means that the company legally holds and/or where it carries out its activity, as well as (ii) in any other premises, including the residence, land and transportation means of the officers, directors, managers and other employees of the company. Within such premises, the search may be conducted in all rooms, cupboards, offices, safes, IT equipment and in all other places where documents may be stored. The officials may not be denied access to any such premises or places. If you oppose the inspection, police officers may ensure necessary support. Therefore, cooperation is recommended. The inspection may only be carried out in the presence of the company’s representatives.
- The inspection may only be conducted during regular business hours. In case such regular business hours do not apply or in case of a daily work schedule of less than 8 hours, the inspection may take place only between 8.00 am and 6.00 pm. The inspection may continue after regular business hours or after 6.00 pm only with the written consent of the company’s representative or the person empowered by such representative.
What may the officials search?
Romanian Competition Authority
- The officials are entitled to inspect and to copy all documents, registers, financial, accounting and commercial documents or any other records relating to company’s activity, even if they include trade secrets. However, they may not seize originals, only copies. Important: always make one additional copy of such documents for the external lawyers.
- The following documents may not, as a rule, be inspected or copied by the officials:
- Communications between the company and its external lawyer, if these are carried out in the framework of and for the exclusive purposes of the right of defence in connection with the accusations that are the subject matter of the inspection, irrespective of their date (prior to or after the opening of the proceedings), subject to these being related to the object of the investigation procedure;
- Preparatory documents drafted by the company for the exclusive purposes of the right of defence and in connection with the accusations that are the subject matter of the inspection.
- 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 that copies of the documents be placed in envelopes or boxes which remain sealed until a final decision as to their privileged character has been made. At the time of inspection, you are not legally obliged to disclose to the inspectors the content of the contested document, but you must provide objective justification with respect to the privileged character of the document. The officials are entitled to seize the documents thus sealed, in two copies. Check whether the records drawn upon completion of the inspection set out the time limit within which the company may submit to the competition authority the evidence and explanations proving the privileged character of the documents.
- Upon request you must give the officials access to IT equipment and storage media (laptops, desktops, tablets, Personal Digital Assistant, mobile phones, CD-ROM, DVD, USB-keys, SIM card, HDD, external server, cloud, etc.), when necessary by providing the passwords and/or administrator access rights. The officials may make use of their own forensic software and/or hardware. However, the officials may not seize computers or other objects, but only make printed and/or electronic copies of computer files/data. Important: always make one additional copy of such documents/data for the external lawyers.
The information which is relevant to the investigation, selected in the presence of the representatives of the company, shall be copied on CD / DVD in two copies, one copy being given to the representatives of the inspected company. If appropriate, inform the officials that documents which are privileged 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 content saved on the computer or on the storage medium. Subject to prior court authorisation, inspectors can copy in their entirety data stored or archived in electronic media (through a special “forensic” procedure), applying seals and analysing the data required for the investigation at the competition authority’s premises in the presence of a representative of the company.
- After the inspection is completed the officials must draw records which should include the list of all documents/evidence seized. A copy of the records, including of the list of seized documents/evidence, must be given to company’s representatives.
- The officials are entitled to affix seals to any premises intended for and to any documents related to company’s activities, for the duration of and to the extent necessary to the inspection, for instance, if an inspection lasts several days. Affixing and removal of seals must be mentioned in records which shall be annexed to the records of the inspection. Do not break the seal under any circumstances. Breaking a seal is a criminal offence.
- Check whether the records drawn upon completion of the inspection set out the time limit within which the company may submit to the competition authority reasoned identification of the seized documents or parts thereof which in company’s view contain business secrets or other confidential information, as well as a non-confidential version of those documents or parts thereof.
Who may be questioned by the officials and how?
Romanian Competition Authority
The officials are entitled to request explanations from all company’s representatives or staff members. Each interviewee must bear in mind that he/she might be held personally liable under the Romanian law.
- Ask that you only be questioned in the presence of an external lawyer.
- Request that questions be asked only in a formal interview which ensures that questions and answers are noted down or recorded. Request a copy of all notes or 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 corrections are made and, in case of refusal, insist that your objections are noted down.
- If explanations have been requested from a staff member who is not or was not authorised to provide explanations on behalf of the company, check whether the records drawn upon completion of the inspection set out the time limit within which the company may correct, amend or supplement his/her explanations.
- Do not answer any question if the answer would incriminate your company or yourself personally.
- Answer only questions actually relating to the subject-matter of the inspection. Therefore, make sure that you are informed prior to the interview about the subject-matter 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.