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Guidelines

For inspection by Spanish Competition Authority

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What documents must the officials present?

Spanish Competition Authority
 

  • To inspect a company, the officials must present an inspection order from the Director of Competition of the Spanish Competition Authority. Unjustified opposition once the inspection order has been notified is considered an obstruction and will lead to the initiation of a separate sanctioning procedure, in addition to be considered as an aggravating circumstance if an infringement of competition law is finally declared. Nevertheless, the company may choose not to consent to the inspection when it has reasonable grounds to do so (please consult external counsels before adopting this decision). In the absence of consent, the officials will only be able to conduct the inspection when they have a judicial order from the competent judicial authority.
  • The inspection order must sufficiently state:
    • The subjects under investigation.
    • The object, purpose, scope and date when the inspection is going to be carried out: (i) what is being sought and (ii) what is the conduct.
    • The data, documents, operations, information and other elements that must be the subject to the inspection.
    • Specific reasons for entry and why it is considered that the documents related to the inspection will be located at the company's premises.
    • The company's relationship with the facts under investigation.
  • Read the documents carefully and check:
    • Is our company the addressee? Does the stated address match the inspected address?
    • Is the aim, scope and object of the inspection well defined in the inspection order?
    • Where may the officials search?

Where and how may the officials search?

Spanish Competition Authority
 

  • The officials are entitled to inspect any premises, facility, land and means of transport of the inspected companies and subjects. However, judicial authorisation would be required when such access implies a restriction of the right to inviolability of the home. The officials are also entitled to inspect private homes of company's employees and other premises, land or means of transport different from those owned by the company provided that they have the relevant judicial authorisation or their prior express consent.
  • The officials may not use force against persons or property. 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 obliged to inform companies whether a judicial authorisation has been requested; if it has been refused, they may not withhold such information. The officials’ refusal could be used as a possible argument to oppose to their entry. Moreover, the consent obtained by withholding information that relevant for taking a position on the sought consent to proceed with the inspection would be considered null and void.
  • If a company does not submit the inspection although a judicial order has been issued, the public authorities, including the State Security Forces and Bodies, can provide the necessary protection and aid to the officials for the exercising of the functions of inspection. In addition, the person in charge of the Competition Directorate may appoint authorised accompanying people.
     

What may the officials search?

Spanish Competition Authority

Documents

  • The officials may, in general terms, have access to any premises, facility, land or means of transport of the company, inspect and copy all documents as set out in the documents ordering the inspection even if the requested documents include business secrets and regardless of the format they are stored on. Moreover, if necessary, the officials may retain them for a maximum of ten days. They may also access to the documentation that is stored in systems, computer services or devices provided by third parties, cloud storage systems and services and any other documentation that the inspected company has access to.
    However, the officials are not entitled to seize originals, but only copies.
    ¡Important!: Be sure that the inspected books and documents are covered by the subject-matter of the inspection.
    ¡Important!: Always make an additional copy of any document copied or gathered by the officials for the subsequent assessment by the external lawyers.
    ¡Important!: Carefully review the minutes of the inspection report and state any irregularities detected during the course of the inspection. At the end of the inspection, request the list of keywords used in the search.
    ¡Important!: Do not try to destroy or hide any physical or electronic document.
  • The following documents may not be seized, copied or read by the officials:
    • Private documents insofar as they are of no significance as evidence.
    • Documents which are not related to the subject-matter of the investigation.
    • Correspondence between the company and an external lawyer (in Spanish Law there is doubt as to whether communications with an internal counsel are covered by attorney-client privilege). Company documents containing and/or reflecting legal advice given by external lawyers as described 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 that these documents be placed in sealed envelopes or boxes until a final decision as to their privileged character has been made. In any case, include the opposition to its delivery in the minutes of the inspection.

Computers and other objects

  • Upon request of the officials, you must give them access to computers and electronic devices used to deal with professional issues (laptops, tablets, mobile phones, pen drives, etc.) when necessary by providing the passwords. However, the officials may not seize computers or other devices, but only make electronic copies of their content.
    Important: Always make an additional copy of such document for the subsequent assessment by the external lawyers.
  • Where appropriate, inform the officials that certain privileged documents that are saved on the computer (or other devices) may not be copied as they are private and/or they are legally privileged. In this case, request that the officials check each file rather than copy the entire hard disk.

Protocol / Seals

  • The officials are entitled to seal any premises, books or documents, computer systems or electronic devices and other assets of the inspected company for as long for as long as it is necessary for the inspection. Do not break the seal under any circumstances. Breaking a seal is an obstruction of the inspection work which can be sanctioned with fines of up to 1% of the total turnover of the company. 

Who may be questioned by the officials and how?

Spanish Competition Authority
 

The officials are entitled to request explanations from all employees relating to the subject matter of the inspection and are entitled to interview: (i) any representative of a company or association of companies, and (ii) any market player who may have relevant information to the subject matter of the inspection, even if there is no evidence of its participation in the infringement. The employee must bear in mind that he or she may be held personally liable.

  • Ask to be questioned only in the presence of an internal/external lawyer.
  • Request that questions be asked only in a formal interview which ensures that questions and answers are recorded. Make sure that someone is noting down the questions and answers.

  • Make sure that you have understood the question. If necessary, ask for further explanation. If the officials do not provide such clarification, request to contact an external lawyer before you answer.
  • Do not answer any self-incriminating questions.
  • Answer only questions actually relating to the subject-matter of the inspection. Answer only the questions asked. Give short and precise answers. Stick to the facts and do not provide legal assessment.
  • Do not provide inaccurate or misleading information. In case of not being certain of the answer, state it clearly. If the officials insist, you must offer the authority the possibility of answering once the respective verifications have been made.
  • Request, if applicable, a copy of the record, tape recording or transcript of the interview.
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