On 11 September 2015, the Commission published a revised version of its explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003 (the "Revised Explanatory Note"). As was the case in the previous update of the Commission's note, the most relevant additions in the Revised Explanatory note concern IT-searches and continued inspections [see our May 2013 newsletter article].
In particular, the Revised Explanatory Note clarifies that the Commission may search the entire IT-environment and all storage media including servers, external hard disks, backup tapes and cloud services. In addition, the Commission sustains that searches can be extended to private devices and media that are used for professional reasons when they are found on the undertaking's premises.
The Revised Explanatory Note also clarifies that selected evidence may be collected in its "technical entirety". In other words, if only the attachment of an email is selected, the final export can consist of the cover email and all the attachments contained within the email and/or other embedded data items.
Additionally, the Revised Explanatory Note provides further guidance on the conduct of continued inspections when the selection of documents is not completed by the end of the inspection on the undertaking's premises. The undertaking can now be requested to keep the sealed envelope with the data set still to be searched to allow the Commission to continue with the search in a subsequent announced visit at the premises of the undertaking. This provides an alternative to continuing with the inspection of the contents of the sealed envelope at the Commission's premises.
The Revised Explanatory Note also elaborates on the treatment of personal data subject to EU Data Protection Rules and confirms the Commission's practice of obtaining and copying business documents/data that may contain the personal data of individuals.
Even though the Revised Explanatory Note is not legally binding, non-compliance with the instructions thereby provided is likely to be interpreted as a violation of the undertaking's obligation to fully cooperate with the Commission's inspections. More challenges to the Commission's practices during on-site inspections are likely to follow in line with recent cases in this area [see our May 2015 and July 2015 newsletter articles.]