Dawn raids are back – and they're bigger and bolder than ever before. Authorities are now copying personal electronic devices and seizing information from social media accounts, visiting individual homes, raiding premises in different countries at the same time, and acting on the basis of their own preliminary investigatory work rather than a leniency application. This invigorated approach to dawn raids by competition authorities around the world should cause businesses to take stock and get ready, which is why Mayer Brown, in conjunction with Concurrences, has published Competition Inspections in 25 Jurisdictions, A Practitioner’s Guide (the “Guide”).
An essential toolkit for businesses preparing for or dealing with competition scrutiny across the globe, the Guide provides a one-stop-shop for companies developing dawn raid response tools and strategies and has never been so timely. Like many of its counterparts, the European Commission now carries out inspections, or ‘dawn raids’, in almost half of its antitrust investigations, and exercises very similar powers in closely related areas, such as foreign subsidies, with the added potential to do so under the new EU digital regime (Regulating Digital Platforms: What's Changing in EU and UK | Insights | Mayer Brown). Dawn raids are a first step in an investigation when assessing alleged infringements of competition law, with further raids potentially taking place in the same investigation later down the line (see for example: Unannounced inspections (europa.eu)). As such, this is an issue businesses need to plan for both initially and keep on their radar, remaining ready for whenever inspectors arrive.
Being dawn raided by a competition authority can be a time consuming, expensive, and damaging event for a business. It can carry significant personal liabilities for individuals, too, going so far as potential criminal liability in some jurisdictions. Given the priority surrounding electronic data during dawn raids, a business’ IT infrastructure will often be rigorously manipulated, in a way which causes both personal distress (especially when personal files and devices are scoped, which they increasingly are) and significant harm to business as usual operations.
To make matters even more challenging for businesses, over the past few years, an increasing number of raids have been carried out in a global manner, with authorities in different countries acting in a joined up way, such as carrying out inspections on the same day. For example, several fragrance manufacturers were raided in Spring 2023 by officials from the UK, US, and Swiss competition authorities. A few months later, multiple companies in the construction chemicals sector were raided by UK, US, and Turkish competition authorities. There have been number of recent initiatives facilitating and putting joined up inspections on a stronger footing, bolstering interaction between officials from competition agencies. Although the global nature of modern businesses often necessitates a multi-jurisdictional approach to dawn raids, this poses significant challenges for businesses. For example, legal obligations to comply with raids differ across jurisdictions, and the crucial question of whether to apply for leniency or not will need considering from a global perspective.
Another development we have seen competition authorities adapt dawn raid practices for is the increase in home working. It is not surprising that the number of competition authorities looking to gain or strengthen their powers to find evidence in the homes of professionals is on the rise, even if the legal standards they need to meet in order to do so are still unclear. This makes the area a high risk one for many businesses (Home sweet home? CMA granted domestic search warrant on appeal by English High Court | Insights | Mayer Brown).
It is of some comfort to note that the corollary to the increasingly bold approach by competition authorities to inspections seems, in general, to be met by an apparent willingness of courts to intervene when inspectors overstep the legal limits of their powers. There have been several cases where courts have reminded businesses that they can go directly to the court, even in the context of a competition investigation, to ensure fundamental rights are properly protected and due process is followed (The fundamental importance of gathering sufficient evidence to carry out competition dawn raids | Insights | Mayer Brown). More and more consideration is given to private data being adequately protected and judicial review being available ex ante and/or ex post, including on an interim basis during the raid.
The Guide draws on the collective experience of Mayer Brown's global Antitrust and Competition team, as well as a number of associate law firms which regularly join us in assisting our clients on the ground in antitrust investigations across 25 key jurisdictions in Europe, Asia, and the Americas. For each jurisdiction, the Guide provides details of the legal framework in which competition investigations can be conducted, the nature of inspection powers, the key stages of an inspection, the rights and obligations of inspected companies, and judicial review powers.
The Guide builds on the European success of two reference publications authored by our partner, Nathalie Jalabert-Doury:
- The first is dedicated to competition inspections by French authorities (Les Inspections de Concurrence des Autorités Françaises, https://www.concurrences.com/fr/all-books/ les-inspections-de-concurrence-des-autorites-francaises-2e-ed),
- The second covers European inspections (Competition Inspections under EU Law, https://www.concurrences.com/fr/all-books/competition-inspections-under-eu-law-97425).
We hope this Guide from Mayer Brown and Concurrences is a useful tool, and the global Mayer Brown Antitrust & Competition team is ready to assist with any dawn raid issues you have – from being prepared if/when a raid may happen through a potential imminent raid to the aftermath of one that’s taken place recently.
