The General Court recently held the oral hearing in a challenge by Nexans against the European Commission’s dawn raid of its offices in January 2009. The Commission was investigating a suspected cartel in the undersea high-voltage cable market (it issued a statement of objections in July 2011). During the dawn raid, the Commission removed copies of computer files and the hard drive of a computer for review in Brussels, a decision challenged by Nexans. The report of the hearing outlines the steps taken by the Commission to obtain information from the Nexans computers, and therefore provides a useful description of the Commission’s current practice in such situations.
Article 20 of Regulation 1/2003 gives the European Commission power “to examine the books and other records related to the business, irrespective of the medium on which they are stored” and “to take or obtain in any form copies of or extracts from such books or records”. This power permits the Commission both to examine electronic information and to take digital or paper copies of that information during a dawn raid.
The process
• The Commission examined electronic documents on the company’s server and emails of certain employees. It also asked to examine
the computers of certain employees.
• The Commission transferred the computers of those employees to a meeting room and used specialist forensic technology to image the hard discs (making what it described as “true copies”) onto its own computer. The Commission’s forensic technology is also able to recover documents which the user has deleted.
• The meeting rooms were sealed overnight while the copies were “indexed” so that they were searchable.
• The next day, the Commission’s inspectors ran searches through the indexed copies to find key words so as to identify documents which might be relevant to the inspection.
• It then examined the documents in which those key words appeared and copied relevant documents onto CDs.
• The CDs were placed in envelopes to take back to Brussels. The envelopes were sealed and signed by a Nexans representative.
• Finally, the Commission wiped its own computer to remove the copies of the hard discs.
• The Commission also made an image of the entire hard disc of one employee’s computer which it copied and took with it to Brussels to complete the indexation and key word searches. It is the legality of this step that is disputed by Nexans. It appears to have been taken because the employee’s computer was not available until the third and final day of the inspection and the Commission took the view that there was insufficient time to review the documents at Nexans’ premises.
• In this case, the Commission provided a copy of the imaged disc to Nexans. It sealed its own disc images in an envelope, which it undertook to open at its offices only in the presence of Nexans’ lawyers. In Brussels a few weeks later, the Commission opened the sealed envelope in the presence of Nexans’ lawyers. Both parties then reviewed the documents and the investigators printed copies of the relevant documents. They also provided copies to Nexans’ lawyers, together with a list of the documents taken. The room in which this took place was sealed at the end of each day and opened in the presence of Nexans’ lawyers.
Comment
It will be seen that the Commission’s procedures for taking away electronic information for further examination at its own offices are subject to very similar safeguards to those applying in the case of an on-site investigation. In practice, many businesses are likely to prefer the convenience of being able to review documents at the Commission’s offices (at which they are entitled to raise objections in relation to issues such as relevance or legal privilege), without the time pressures encountered in a dawn raid, and with fully briefed lawyers in attendance. It may therefore be preferable not to object to the procedure, or even to encourage it, provided that appropriate safeguards are maintained in relation to sealing the disc images and securing the room in which the subsequent review is to take place.
More generally, familiarity with the Commission’s procedures (which are comparable to those adopted by many other authorities) will help to minimise the impact of any dawn raid. It is useful for IT departments, as well as inhouse legal teams, to be aware of the tools and procedures employed in such investigations, in case they are asked to provide support, or in order to satisfy themselves that any search will not interfere with their systems.
As always, the key principles for those involved in responding to a dawn raid are to ensure that an accurate record is kept
of documents or discs taken (ideally with a duplicate of any disc or other electronically stored document), search terms used,
together with requests for explanations, refusals etc. Where the search is to be interrupted, ensure that rooms, envelopes,
discs etc are adequately secured. At the same time, bear in mind the penalties imposed for breaking seals applied by the Commission,
and it necessary take additional precautions to protect them against inadvertent or even deliberate breach.
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