It's 9.30am. You are in the office, catching up on your emails before heading into back to back meetings that will take up most of the day. Little do you know that this is the calm before the storm.
Your telephone rings. It is the receptionist. They say that eight officials from the Competition & Markets Authority (CMA) have just entered the building. The officials do not have an appointment, but they are insisting on seeing someone in senior management immediately. You are the most senior person on-site at the time, so the buck stops with you. It dawns on you that this is serious. The business is being 'dawn raided' and it falls to you to manage the situation and protect the business' interests.
Would you know what to do if this were you?
Each year, a number of UK businesses and their staff face a situation similar to that described above. Dawn raids form an important part of the CMA's arsenal of investigatory powers. In recent years, Mercedes-Benz, AstraZeneca and British Airways have been amongst the large businesses that have been dawn raided by the CMA or its EU counterpart, the European Commission. However, many much smaller businesses have also been subject to investigation. And the scope of such raids can be significant. It was reported earlier this year that an online sales company based in the West Midlands had been raided in relation to alleged price-fixing that is being investigated by both the UK and US competition authorities.
For the business concerned, a dawn raid signals merely the start of what is likely to be a long and burdensome competition investigation, the conclusion of which could involve very significant fines and the risk of follow-on damages claims.
What can businesses do to protect themselves?
First and foremost, prevention is better than cure. All businesses in the UK are subject to the competition law rules and all businesses should take appropriate steps to identify, quantify and then manage their competition law risks.
There is no one-size-fits-all when it comes to competition compliance. E-learning, face-to-face training and compliance manuals are all popular options for conveying the key compliance messages to staff. Whichever approach is chosen, to be meaningful and effective, the content must be tailored to the issues and real-life risks that the business faces. This is an area where staff rarely need to know 'the law'. Rather, they need to know the practical implications of the law for them in their day-to-day commercial roles.
Ensuring that the business is compliant with competition law is the best that any business can do to minimise the risk of investigation. However, even businesses with compliance programmes in place can come under scrutiny by a competition authority. Sometimes, despite efforts to train staff on the key 'dos and don'ts', individuals may inadvertently (or otherwise) engage in conduct that is potentially objectionable as a matter of competition law. Other times, the competition authorities launch investigations into suspicions that turn out to be unfounded.
It follows that all businesses should be prepared for the possibility of investigation, including a dawn raid. Giving thought in advance to how the business would handle a dawn raid if one were to happen offers significant comfort that the business will cope effectively if the worst comes to the worst.