On 14 November 2012, the General Court of the European Union (General Court) held that the European Commission (EC) must have reasonable grounds for suspecting an infringement of the EU competition rules in a particular sector before it can carry out an “inspection” (dawn raid). The EC’s decision authorising its staff to carry out a dawn raid (an “inspection decision”) can therefore only validly refer to sectors of activity in relation to which the EC has such grounds.
The valid scope of an inspection decision is important because, as the court pointed out, during a raid the EC must restrict its search to the sectors indicated in the decision and if it finds, after examination, that a document does not relate to those activities, it must refrain from using it for the purposes of its investigation. If this were not the case, the EC would be able to carry out a dawn raid (on the basis of reasonable grounds for suspicion in any sector) which could in practice cover all the activities of a company, with the aim of trying to detect any infringement of the competition rules which might have been committed by that company (in any sector). This would be a classic “fishing expedition”.
Companies must still be careful not to obstruct the EC when it carries out dawn raids. However, this case emphasises that they should nevertheless monitor the EC officials closely during a raid to ensure that they take away documents only in sectors covered by the decision. The EC will inevitably be more sensitive to arguments that it is going beyond the scope of its decision.