EU and Irish regulators, including the Competition and Consumer Protection Commission ("CCPC") and the European Commission, are empowered to conduct "dawn raids" in order to gather evidence for competition law investigations. It is essential for businesses to have a procedure for all staff to follow in the event of a dawn raid.
At Matheson we have achieved successful outcomes for clients subject to dawn raids and we have leading expertise in effective dawn raid training and procedure design. We have distilled some of our experience into the below timeline guide on what to expect and what to do in the event of a dawn raid.
Our guide takes into account international best practice and the recent decision in CRH, Irish Cement Limited and Lynch v CCPC, which is under appeal and due to be heard in January 2017.
Dawn – Responding to the Investigation
The arrival of a team of officials from the CCPC or the European Commission (often including Gardaí) can be unnerving and it is important that all staff remain calm and cordial. The first contact point between the regulator and your business will likely be reception staff, therefore make sure to brief them on the procedure to follow.
| What to Expect | What to Do |
| Arrival of officials at your office. | Notify your Dawn Raid Contact List without delay. |
| Display of Irish Court warrant / EU authorization. | Take a copy of the document, so that competition lawyers can advise on whether it is valid and appropriate and what scope of search is permitted by it. |
| Immediate commencement of the investigation. | You may request that the officials wait the arrival of your Dawn Raid Response Team (including senior management and lawyers) before beginning their investigation. However, neither the CCPC nor the EU Commission officials are under an obligation to postpone their search and you must not obstruct their entry if they decline to wait. |
Midday – Monitoring the Investigation
| What to Expect | What to Do |
| A Broad Sweep: The officials may inspect, copy or seize records relating to the subject of the investigation, including electronic equipment, hard drives, originals, and legally privileged records. | Arrange for the activities of each
official to be recorded by a 'shadower' throughout the
investigation, so that a full duplicate of the files taken by the
officials can be made. Allocate responsibility to a member of your Dawn Raid Response Team for raising concerns with the lead official about the inspection of records that are 'out of scope' or legally privileged, whereby disputed records are sealed pending resolution of their status. |
| Looking for signposts: The regulator may inquire as to the whereabouts and roles of individuals or the location and meaning of records. | Do not attempt to hide or destroy anything. Limit your answers to factual responses and where appropriate note that you are answering "under compulsion". |
| On-the-spot interviews: officials may seek to interview individuals regarding the matter under investigation. | Provide purely factual answers (never be tempted to speculate) to any relevant questions put to you. Record all questions and answers, remembering that anything said may be used in evidence later. |
Dusk – Untangling the Effects of the Investigation
| What to Expect | What to Do |
| The officials may have certain areas of your offices 'sealed' (for later return) before leaving. | Instruct staff (including cleaning contractors) not to enter sealed areas due to risk of severe fines. |
| The officials may retain seized records; however they must provide a list or copies of seized records on request. | Prepare a complete duplicate of the regulator's file (including questions asked and answered), and seek competition law advice on your position. Always request a list from the officials as to all records taken. |
| Queries from media, staff, suppliers and clients. |
Monitor news coverage and review any pre-prepared Dawn Raid Press Statement. If staff members were investigation targets, seek legal advice on how to support them appropriately. |
| A formal process for resolution of disputed claims of the seizure of irrelevant or privileged records. | Seek legal advice on engagement with the regulator and legal options for challenging seizures. |
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.