The Slovak Competition Office (“Office”) has demonstrated (in a case which is not yet in legal force) its willingness to challenge generally applied practises of informing an attorney in the case of a dawn raid.
Based on the recent practice of the Office, during the first 30 to 60 minutes of a dawn raid, the Office blocks emails and conducts other measures to prevent the undertaking from deleting documents and emails. The Office does not wait for the arrival of an attorney when it conducts such measures. Nonetheless, it allows the undertaking to contact a third party. Such third party may also be an attorney.
The Office has now adopted a new approach to such communication with a third party / attorney and it does not allow the undertaking to inform the third party about a dawn raid inspection, i.e. the undertaking may request the presence of the third party / attorney but it cannot disclose that the reason for her / his requested presence is a dawn raid inspection.
The Office has imposed a fine of EUR 1 million on an undertaking in the milk sector which provided information about the presence of the Office to its attorney and failed to properly block its email accounts. Since the case is not yet in legal force and therefore not published, it is not clear whether the final decision will indeed include a penalty for contacting an attorney to provide legal services during a dawn raid.
However, based on discussions with a representative of the Office, such practice will likely continue. The practice is not expressly implied by the Slovak pertaining legislation and there is no binding official guideline in this regard. Also, there is no official communication from the Office regarding this issue.
The Slovak Bar Association has criticised this practice, however, it seems that the practice is still exercised.
When discussed with the Office, they claimed that there is no restriction on the right to an attorney because they do not prevent the undertaking from contacting an attorney. The prohibition on informing about the dawn raid is necessary for efficient inspections, and should an attorney be informed of the inspection at such an early stage, there is a risk that such an attorney may inform other undertakings e.g. in cartel cases.
We strongly disagree with both such an assumption and such practice.
There is a significant number of arguments against such approach which range from (i) breach of the basic right of an undertaking to legal representation and inability of an attorney to provide complex and sufficient legal aid to its client without knowing the reason for her / his presence; consequently (ii) inability of an attorney to fully assess her / his time capacity for the dawn-raid; also (iii) breach of legal privilege by restricting communication of the client with an attorney to (iv) breaching of basic principles related to legal aid in public law proceedings.
We will monitor the situation and share any developments. However, changes of the dawn raid guidelines may be advisable upon official confirmation of the approach.