The European Commission seems to walk a fine line during dawn raids between embarking on a fishing expedition and accidentally stumbling across evidence. According to Advocate General Wahl’s court opinion, the Commission is not required to turn a blind eye if it coincidentally finds documentary evidence during a dawn raid that points to a different infringement of EU competition law. But a dawn raid cannot be used to look for documents which concern a different, unrelated matter. Companies should therefore be fully aware of the subject matter and purpose of the inspection decision when keeping an eye on Commission inspectors during a raid.

The European Commission conducted a dawn raid at the premises of German rail operator Deutsche Bahn on the basis of an inspection decision regarding possible unjustified preferential treatment of its subsidiaries in the supply of electric traction energy. During the raid, Commission inspectors found documents which indicated the possible existence of further anti-competitive conduct. Accordingly, another inspection decision was notified to Deutsche Bahn while the first raid was still ongoing. Deutsche Bahn argued, amongst other things, that the accidental discovery of the documents unrelated to the first inspection decision affected its rights of defence. According to Deutsche Bahn, the European Commission had acknowledged that the Commission inspectors conducting the first dawn raid had been informed beforehand of a complaint alleging another infringement by a different Deutsche Bahn subsidiary.

The Advocate General agreed with Deutsche Bahn. Even though the Commission cannot search for evidence relating to a potential breach of EU competition rules other than those related to the subject-matter of the investigation, as laid down in the inspection decision, there is no valid reason for why it should disregard information genuinely found by accident – see earlier case law to the same effect.  However, the Advocate General was unconvinced that the evidence in this particular case had indeed been found by chance, given the pre-raid briefing where inspectors had been specifically informed about the subject-matter of the other complaint. According to the Advocate General, the only plausible explanation for providing this information was that the inspectors should “keep their eyes peeled” for evidence related to this complaint. The Advocate General concluded that the Commission circumvented the procedural rules for dawn raids by using a dawn raid to look for documents that concerned another unrelated matter. After all, nothing prevents the Commission from adopting two inspection decisions addressed to the same company in the event of a different and distinct alleged infringement by a company already under investigation.

If the Advocate General’s opinion is followed by the European Court of Justice, companies will have more clarity on the process that the European Commission should follow to prevent dawn raids from resulting in outright fishing expeditions. In any event, companies should always keep the subject-matter of the Commission’s inspection decision in mind while keeping track of Commission officials during a raid.