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2012 ICN Cartel Workshop

2012 ICN Cartel Workshop. Breakout Session: Searches, Raids and Inspections Moderators: Daniel Kenna Isabel Lopez Galvez. Searches, Raids and Inspections. Objectives and success factors Powers of the inspector/Duties of the undertakings inspected

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2012 ICN Cartel Workshop

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  1. 2012 ICN Cartel Workshop Breakout Session: Searches, Raids and Inspections Moderators: Daniel Kenna Isabel Lopez Galvez

  2. Searches, Raids and Inspections • Objectives and success factors • Powers of the inspector/Duties of the undertakings inspected • Preparation, development and post inspection • Inspections in collaboration with other Competition Authorities

  3. Objectives and Success Factors • Element of surprise - Effective • To seize and secure evidence • Reduce risk of destruction of evidence • Avoid the non-production of evidence

  4. Searches and InspectionsCriminal/administrative system • Use of force • Original documents v copies • Interview/caution • Duration of search • Burden of proof

  5. Criminal SystemPowers of the Inspector/Competition Authority • Law Enforcement Agency • Section 45 of the Competition Act 2002 • Information on oath • Judge is satisfied it is “appropriate” • Warrant valid for one calendar month • Test in court to a criminal standard of proof

  6. Administrative SystemPowers of the Competition Authority • Article 40 Act 1/2007 of 3 July 2007 • Powers of the inspectors: • to enter any premises, land and means of transport of the undertakings and associations of undertakings and the private homes of the entrepreneurs, managers and other members of staff of the undertakings, • to verify the books and other records relating to the business activity, irrespective of the medium on which they are stored, • to take or obtain in any form copies of or extracts from such books or records, • to retain the books or documents for a maximum period of 10 days, • to seal all business premises, books or records and other business assets for the period and to the extent necessary for the inspection, • to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents related to the subject-matter and purpose of the inspection and record the answers. • Judicial authorization (inaudita parte debitoris): article 40.4 LDC • Public authorities shall provide the necessary protection and aid to the CNC personnel for the exercising of the functions of inspection.

  7. Criminal System:Duties of the undertakings searched • Permit entry to premises without delay • Comply with all requests and/or requirements • Obstruction Section 45 (10) Competition Act 2002 • Summary conviction… fine not exceeding €3000 or imprisonment for a term not exceeding 6 months or both………..

  8. Administrative System:Duties of the undertakings searched • Duty of collaboration: article 39.1 LDC • Obliged to submit to the inspections that the Director of Investigation has authorized: article 40.3 LDC. • Obstruction by any means of the inspection: minor infringement (article 62.2.e LDC) • Not submitting the books or documents requested by the CNC or submitting them in an incomplete, incorrect or misleading manner in the course of the inspection. • Not answering the questions formulated by the CNC or answering them in an incomplete, inexact or misleading manner. • Breaking the seals put in place by the CNC. • CNC Resolutions: the notion of obstruction has been enlarged: • Delay the start of the inspection • Hinder the development of the inspection • Remove documentation

  9. Preparation, development and post inspection • Reconnaissance • Briefing Session • Composition of search team • What to bring on search • Computer Forensics • Access • Documentation to submit • Police presence • Debrief and review of seized material • Minutes

  10. Police Presence • Provides local knowledge • Facilitates entry to premises • Minimises potential obstruction • Power of seizure not covered by warrant • Power of arrest

  11. Searches/inspections with other competition authorities • European Competition Network (ECN): European Commission and Competition Authorities of the 27 Member States of the European Union • Regulation 1/2003 foresees joint action and assistance of competition authorities within the ECN and Commission Cooperation Notice contains rules on exchange evidence and other information

  12. Searches/inspections with other competition authorities • Searches/inspections with the Commission pre Council Regulation (EC) No. 1/2003 • Searches/inspections with other competition authorities • Exchange of information with other competition authorities • Immunity applicant - request waiver of confidentiality

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