Ready for a raid? Updated Guide to Competition Inspection in 25 Jurisdictions | News

Dawn raids are back – and they’re bigger and bolder than ever before. Authorities are now copying personal electronic devices and seizing information from social media accounts, visiting individual homes, raiding premises in different countries at the same time, and acting on their own preliminary investigative work rather than a leniency application. This revitalised approach to dawn raids by competition authorities around the world should cause businesses to take stock and prepare, which is why Mayer Brown, in partnership with Concurrences, has published Competition inspections in 25 jurisdictions, a guide for practitioners (this “Guide“).

An essential toolkit for companies preparing for or dealing with competition control worldwide Guide provides comprehensive support for companies developing tools and strategies to respond to dawn attacks and has never been more up-to-date. Like many of its counterparts, the European Commission currently conducts inspections or ‘dawn raids’ in almost half of its antitrust investigations and uses very similar powers in closely related areas such as foreign subsidies, including additional potential under the new the EU digital system (Regulation of digital platforms: what’s changing in the EU and the UK | Insights | Mayer Brown). Dawn raids are the first step in an investigation when assessing alleged competition law infringements, and further raids may take place as part of the same investigation later on (see for example: Unannounced Inspections (europa.eu)). As such, it is an issue that companies need to consider both at the outset and on an ongoing basis, being prepared whenever inspectors arrive.

Being raided by the competition authority can be a time-consuming, expensive and damaging event for a company. It may also involve significant personal liability for individuals, even up to potential criminal liability in some jurisdictions. Given the priority given to electronic data during dawn raids, a company’s IT infrastructure will often be rigorously manipulated in ways that cause both personal distress (especially when personal files and devices are included in scope, as is increasingly the case) and significant harm to ordinary business operations.

To make matters even more difficult for businesses, over the past few years an increasing number of raids have been conducted globally, with authorities in different countries acting in a joint manner, for example carrying out inspections on the same day . For example, in the spring of 2023, competition authorities from the UK, the US and Switzerland raided several perfume manufacturers. A few months later, competition authorities from the UK, the US and Turkey raided a number of companies in the construction chemicals sector. A number of initiatives have been introduced recently to facilitate and strengthen joint inspections, strengthening interactions between competition agency officers. While the global nature of modern businesses often requires a multi-jurisdictional approach to prevent dawn raids, this creates significant challenges for businesses. For example, legal obligations to comply with raids vary across jurisdictions, and the key issue of whether or not to seek leniency will need to be considered from a global perspective.

Another development in which competition authorities are adapting their dawn screening practices is the increase in the number of people working from home. It is not surprising that the number of competition authorities seeking to obtain or strengthen their powers to find evidence in the homes of professionals is growing, even if the legal standards they must meet to do so are still unclear. This makes this area a high-risk area for many companies (Home Sweet Home? CMA Obtains Domestic Search Warrant Following Appeal from High Court of England | Conclusions | Mayer Brown).

There is some consolation in the fact that the lesson from competition authorities’ increasingly bold approach to inspections appears to be, by and large, met with an apparent willingness of courts to intervene when inspectors exceed the legal limits of their powers. There have been several cases where courts have reminded companies that they can go directly to court, even in the context of a competition investigation, to ensure that fundamental rights are properly protected and due process is followed (It is essential to gather enough evidence to conduct raids at dawn. | Insights | Mayer Brown). Increasing importance is attached to the adequate protection of private data and the possibility of ex ante and/or ex post judicial review, including temporarily during a raid.

The guide draws on the collective experience of Mayer Brown’s global antitrust and competition team, as well as a number of law firms that regularly join us in helping our clients in the field with antitrust investigations in 25 key jurisdictions across Europe, Asia and the Americas. For each jurisdiction, the Guide provides details of the legal framework within which competition investigations can be conducted, the nature of inspection powers, the key stages of inspection, the rights and obligations of inspected companies, and powers of judicial review.

The guide builds on the European success of two reference publications authored by our partner, Nathalie Jalabert-Doury:

We hope you find this Mayer Brown and Concurrences Guide a useful tool and that Mayer Brown’s global antitrust team is ready to help you with any dawn raid concerns you may have – from preparing if/when they may occur raid, to a potential, imminent raid to the aftermath of one that occurred recently.