Ready to Rally? Updated Guide to Competition Inspections 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 Controls in 25 Jurisdictions, A Guide for Practitioners (this “Guide“).

An essential toolkit for businesses preparing for or coping with global competitive scrutiny. Guide provides a one-stop shop for companies developing tools and strategies to respond to dawn attacks, and this has never been more relevant. Like many of its counterparts, the European Commission now carries out inspections, or “dawn attacks,” in almost half of its antitrust investigations, and exercises very similar powers in closely related areas such as foreign subsidies, with additional potential to do so under the EU’s new digital regime (Digital Platform Regulation: 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 in the same investigation later on (see for example: Unannounced Inspections (europa.eu)). As such, it is something that companies need to plan for both at the outset and keep on their radar, ready for when inspectors arrive.

Being raided by a competition authority can be a time-consuming, costly and damaging event for a company. It can also entail significant personal liability for individuals, even potentially criminal in some jurisdictions. Given the priority given to electronic data in dawn raids, a company’s IT infrastructure will often be rigorously manipulated in a way that causes both personal distress (especially where personal files and devices are included in the scope, as is increasingly the case) and significant harm to normal business operations.

To make matters even more difficult for companies, over the past few years, more and more raids have been conducted globally, with authorities in different countries acting in a coordinated manner, for example by carrying out inspections on the same day. For example, in the spring of 2023, several perfume manufacturers were raided by officials from the British, American and Swiss competition authorities. A few months later, a number of companies in the construction chemicals sector were raided by the British, American and Turkish competition authorities. Recently, there have been a number of initiatives to facilitate and strengthen combined inspections, strengthening interactions between competition agency officials. While the global nature of modern companies often requires a multi-jurisdictional approach to dawn raids, this creates significant challenges for companies. For example, the legal obligations to comply with raids vary across jurisdictions, and the key question of whether or not to seek leniency will need to be considered from a global perspective.

Another phenomenon where competition authorities are adapting their inspection practices at dawn is the rise of home workers. Not surprisingly, the number of competition authorities seeking to obtain or strengthen their powers to find evidence in professionals’ homes is growing, even if the legal standards they must meet to do so are still unclear. This makes this area a high-risk one for many companies (Home Sweet Home? CMA Obtains Domestic Search Warrant Following Appeal from High Court of England | Conclusions | Mayer Brown).

It is somewhat comforting that the lesson of the increasingly bold approach taken by competition authorities to inspections seems, in general, to be met by a visible willingness of courts to intervene when inspectors overstep 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 respected (The importance of collecting sufficient evidence to conduct a competitive audit at dawn | Conclusions | Mayer Brown). There is increasing consideration of the adequate protection of private data and the availability of judicial review ex ante and/or ex post, 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 assisting 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 on the legal framework in which competition investigations can be conducted, the nature of the review powers, the key stages of the review, the rights and obligations of the firms being reviewed, and the 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 useful, and Mayer Brown’s global antitrust and competition team stands ready to assist you in resolving any issues related to a dawn intrusion – from preparing for the potential for an intrusion, through a potential imminent intrusion, to the aftermath of a recent intrusion.