Guidelines
For inspection by Swiss Competition Commission.
What documents must the officials present?
Swiss Competition Commission
- In order to search a company the officials are required to prove their identity and to present a written warrant for the inspection. The warrant must be signed by a member of the presidency of the Swiss Competition Commission.
- The subject and purpose of the inspection must be set out in detail in the warrant. Read it very carefully and check:
- Is our company the addressee?
- What accusations are being raised against our company?
- Where may the officials search?
- Right at the beginning of the inspection, the decision has to be taken (together with the external lawyer), whether your company wants to set the marker for a leniency application.
Where and how may the officials search?
Swiss Competition Commission
- The officials are entitled to enter the premises and rooms as set out in the warrant presented and are authorized to secure evidence.
- You are only obliged to passively tolerate the inspection. You are, however, not obliged to actively assist the inspection.
- The inspection can be carried out with the support of the police and a representative of a cantonal authority.
- The officials are also entitled to ask questions (see "Who may be interviewed by the officials and how?").
What may the officials search?
Swiss Competition Commission
- The officials are not obliged to wait for the arrival of the external lawyer before starting with the inspection. Ask them nevertheless to wait for the external lawyer to arrive.
- Under no circumstances you should destroy, delete, or hide any documents or files.
- By making reference to the principle of proportionality, request the officials to only seize copies or scans of paper documents rather than hard copies, and to only copy/mirror electronic data. Original documents and original data storage devices should not be seized.
- Within the scope of the warrant, the officials are in principle entitled to search, seize, copy and/or scan all documents.
- A specific seizure-warrant is required for the seizure of documents. This seizure-warrant can be amended or changed at any time. Ask for a duplicate of the seizure-warrant.
- The following documents may not be inspected, copied/scanned or seized 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 (see above 1.(2))
- correspondence between the company and an external lawyer (privileged documents)
- If the officials want to inspect and/or seize privileged or private documents (in paper or electronic form), only show them those parts of the documents, which prove their privileged or private character. If the privileged or private character of certain documents is contested, request that these documents or data storage devices be placed in sealed envelopes or boxes respectively are sealed until a final decision as to the privileged or private character has been made.
- Important: Do not voluntarily surrender any documents! Make copies of all documents seized or copied/scanned/saved by the officials!
- Upon request you must give the officials access to computers and other electronic devices (including, for example, business mobile phones of employees), when necessary by providing the passwords.
- According to current practice, electronic data is only seized on site (duplicated by mirror/image), and will only be searched, if requested, in the presence of a representative of your company, at a later stage. As a matter of principle the officials may not seize computers or other data carrier since this would normally be deemed to be in contradiction with the principle which requires authorities to act reasonably. Point this out to the officials and request that only electronic copies are made (see above 3.(3) “preliminary remarks”).
- If the officials nevertheless want to inspect electronic data on site, inform the officials that privileged documents and documents which are not the subject of the inspection may be saved on the computer (or the respective electronic storage device). Request that the officials check each file in the presence of a representative of the company or an external lawyer.
- Important: If an investigation starts before the external lawyer arrives, make sure that all evidence collected by the officials (documents, copies of files, electronic devices, etc.) are put aside. After her/his arrival, the external lawyer will check these materials and may request to seal them, if necessary.
- The officials may also seize evidence found which is not connected to the investigation but indicates other infringements.
- The officials will prepare a record of the seized documents. Check it carefully with the external lawyer before signing it and make sure you receive a copy of it.
- The officials are entitled to seal premises, rooms, filing cabinets and documents, etc., e.g. if an inspection lasts several days. The affixing of seals may not be in contradiction with the principle which requires authorities to act reasonably. Do not break the seal under any circumstances. Breaking a seal is a criminal offence.
Who may be questioned by the officials?
Swiss Competition Commission
The officers are entitled to interview all staff, if the interrogation of the person concerned is provided for in the search warrant or in a separate subpoena.
- If the officials ask to interview a manager or an employee of the company, immediately inform the external lawyer. The interview should not be conducted in the absence of the external lawyer. If a person is interviewed as a witness (see below item "Guidelines for the interview"), he/she should not be represented by the company's external lawyer.
- The officials will prepare records of the interview. Make sure the person interviewed reads these records carefully and checks whether they are correct and complete before signing them.
- The formal and de facto organs of the company are interrogated as parties (interrogation of a party). The person interrogated as a party is not obliged to make any statements. She/he has the right to remain silent, without any explanation, in general or with regard to specific questions (there is no obligation to incriminate the company).
- Other current or former employees (this includes also former organs) of the company are interrogated in their capacity as witnesses (interrogation of a witness). The person interrogated as a witness is obliged to testify and to tell the truth as long as she/he is thereby not incriminating herself/himself or a close relative (duty to testify and duty to tell the truth).
- Instructions to be given to the person interviewed: Answer only questions actually within the scope of the inspection. Answer only the questions asked. Give short and precise answers. Tell the officials if you do not know an answer to a question. Do not make any assumptions.
- The external lawyer will provide the person interviewed with further valuable guidance based on the circumstances of the particular case.