Guidelines
For inspection by United Kingdom Competition Authorities
What documents must the officials present?
Competition and Markets Authority
- The CMA may enter business premises (including vehicles) with a simple authorisation from the CMA or with the additional powers of a judicial warrant.
- The CMA is under no obligation to give advance notice of an investigation where the occupier of the premises is suspected of participating in an infringement. A warrant is required if inspections are carried out in domestic premises.
- Read the documents very carefully and check:
- is our company the addressee?
- what accusations are being made against the company?
- do the officials possess an authorisation or a warrant?
- where may the officials search?
Where and how may the officials search?
Competition and Markets Authority
- The officials are entitled to search all offices, domestic premises and cars within the scope of their powers as set out in the relevant authorisation/warrant documents (see above 1.). You may not prohibit access to the premises.
- Where there is a warrant, the officials can search the premises (including homes of directors, executives, managers or other employees, if covered under the warrant) themselves, and may use reasonable force to enter. The officials can also seize documents, require any person to provide an explanation of relevant documents, and can require information stored in electronic form to be produced in a form which can be read and taken away. This includes documents held off-premises accessible from the premises e.g. those stored offsite or offshore.
- Where there is no warrant, the officials do not have the power to search the premises themselves. Instead, they may request persons on the premises to produce documents relevant to the investigation, to provide explanations of any document produced, to state where documents may be found, and to produce information stored in electronic form.
What may the officials search?
Competition and Markets Authority
- The officials have a right to inspect and copy documents relating to the subject matter of the investigation. Where an inspection is carried out under a warrant, originals, as well as copies, may be retained by officials. The officials also have the power to require the production of any information stored electronically and accessible from the premises, not only that which relates to a matter relevant to the investigation. However, the officials only have the power to take copies/possession of anything produced in accordance with this power where it relates to a matter relevant to the investigation.
- Documents (i) between a professional legal adviser (in the UK this covers both an internal and external legal adviser) and a member of the company; (ii) made in connection with, or in contemplation of, legal proceedings and for the purpose of those proceedings cannot be inspected or copied by the officials.
- If officials ask to inspect privileged documents, only show officials as much of these documents as is necessary to make it clear they are privileged. If privilege is contested for certain documents, ask that the documents be put in sealed envelopes or containers so that the privilege issue can be decided later.
- Ensure that a duplicate copy of every copied or confiscated document is made and retained for the external lawyer.
- On request you must give the officials access to computers and laptops, where necessary providing passwords. When investigations are carried out under warrant, officials may remove computers and laptops if the files cannot be examined on site. Make a duplicate of every copied document.
- Ask that computer files are not copied electronically but that the individual files are printed out. If appropriate, point out that some of the documents which are saved on a computer (or respective storage medium) may not be accessed since they are protected by privilege (see above).
- The officials are only entitled to search for, inspect and examine documents which are relevant to the investigation and fall within the scope of their powers as set out in the authorisation or warrant. Monitor the documents being examined. If you are concerned that the officials are examining documents which are not relevant to the current investigation or which may include evidence about another infringement beyond the scope of the investigation, inform the external lawyer immediately.
- The officials should compile a list of all evidence seized, unless it is impracticable. If the officials do not compile a list, you should make a list of all seized evidence and ask the officials at the end of the inspection to verify and sign the list.
- The officials are entitled to seal premises, rooms, cupboards and documents, for example during an inspection lasting several days. In general, the officials cannot affix a seal for longer than 72 hours. Do not break the seal under any circumstances. Breaking a seal can be a criminal offence when it can be regarded as obstructing the officials’ investigation.
Who may be interviewed by the officials and how?
Competition and Markets Authority
- The officials are entitled to request from all employees explanations of documents they examine or information as to where a document can be found.
- The officials are entitled in investigations under UK law to ask wider questions and conduct compulsory interviews with any individual e.g. not only those individuals with a connection to the undertaking suspected of the infringement (third parties, suppliers, customers). Where the CMA wishes to question someone, it will provide them with a formal notice requiring them to answer questions at a specified place and time, or immediately on receipt of the notice. The CMA can also request that interviews are carried out remotely. Questioning may be delayed for a reasonable time to allow a lawyer to attend, although the CMA can take steps to reduce the risk that witness evidence might be contaminated.
- When investigating a criminal cartel (where you might be held personally liable!), officials are also entitled to ask wider questions and conduct formal interviews. Officials are most likely to ask on-the-spot questions during the raid and to seek formal interviews at a later date. Important! If a formal interview is sought in the context of a potential criminal investigation it is essential you obtain comprehensive legal advice in addition to what is stated below, as your rights in relation to interviews are more complex.
- Ask to be questioned in the presence of the external lawyer. Ensure notes are taken of all questions asked and all answers given. Never sign any document before having consulted the in-house or external lawyer.
- There is a right against self-incrimination. This means that if the company is suspected of having committed a competition law infringement, the CMA cannot require you to provide answers or statements that might involve an admission on your part of the existence of that infringement. You should refuse to answer questions which would involve admitting a breach of the law by the company or by you personally.
- Only answer questions related to the inspection. Only answer questions which have been raised. Give short and precise answers. If you do not know the answer, say so. Do not make any assumptions.