What are the key investigative powers that are available to the relevant authorities?
The Authority may request all information it deems necessary from all public institutions and organisations, undertakings and trade associations. Officials of these bodies, undertakings and trade associations are obliged to provide the necessary information within the period determined by the Authority.
Article 15 of the Competition Law also authorises the Authority to conduct on-site investigations and dawn raids. Accordingly, the Authority is entitled to:
- examine the books, paperwork and documents of undertakings and trade associations, and, if necessary, take copies of the same;
- request undertakings and trade associations to provide written or verbal explanations on specific topics; and
- conduct on-site investigations with regard to any asset of an undertaking.
The Competition Law provides vast authority to the Authority on dawn raids. Only if the undertaking concerned refuses to allow the dawn raid, a court order may be obtained. Other than that, the Authority does not need to obtain judicial authorisation to use its powers. While the wording of the Law is such that employees can be compelled to give verbal testimony, case handlers allow a delay in giving an answer so long as there is a quick written follow-up correspondence. Therefore, in practice, employees can avoid providing answers on issues that are uncertain to them, provided that a written response is submitted within a mutually agreed time. Computer records are fully examined by the case handlers of the Authority, including but not limited to deleted items.
The case handlers are not entitled to exercise their investigative powers (copying records, recording statements by company staff, etc.) in relation to matters that do not fall within the scope of the investigation (which is written on the deed of authorisation).
The CCA invests the ACCC with significant investigatory powers.
Under s155 of the CCA, the ACCC may issue a notice to a person if they have “reason to believe” that the person is capable of providing information, documents or evidence relating to a matter that constitutes, or may constitute, a contravention of the CCA.
Specifically, the ACCC can issue three types of s155 notices: notices to furnish information, produce documents, or require a person to appear before the ACCC to give evidence, orally or in writing.
It is an offence to fail to comply with a s155 notice or knowingly providing false or misleading information in response to a s155 notice. In ACCC v Rana  FCA 372, the defendant was sentenced to gaol for refusing to comply, and aiding and abetting the failure a company he controlled to fail to comply, with a s155 notice.
Since 1 January 2007, the ACCC has had the power to obtain a search warrant authorising it to enter specified premises and seize documents and things, including electronic equipment and data storage devices, in relation to alleged contraventions of the CCA.
An executing officer may make copies of evidential material and/or seize things. They may also require a person to answer questions or produce evidential material. A failure to comply with any such requirement is a criminal offence.
If a warrant is valid, an occupier must provide reasonable facilities and assistance. An occupier is entitled to observe the search being conducted, receive a receipt of each document or thing seized and request a copy of the material seized.
In criminal investigations, the AFP may also obtain a warrant under the Crimes Act 1914 (Cth) (Crimes Act). The ACCC (together with the AFP) can also obtain a warrant allowing the interception of telephone communications or the installation of listening/surveillance devices.
Under the FCA, the investigation powers of the enforcers have a 10-year statute of limitations period, from the date in which the alleged cartel ceased to exist.
Dawn raids are usually order at the outset of the investigation so as to maintain an element of surprise. Under the FCA, visited firms and individuals are required to cooperate with the agency performing the inspection, and the agencies are empowered to review and make copies of all physical and electronic information specified in said order. Authorized officials from agencies are also allowed to seal property, documents and records to prevent that the same are altered or destroyed, and the economic agents may not access or use the same unless they show that the use thereof is necessary in their ordinary course of business. The agencies, however, are specifically prohibited from seizing documents or information.
Along the same lines, the agencies may ask questions to representatives, officers and employees of the raided agents, provided that such questions relate to the documents, information or facts subject matter of the visit order.
Obstructing a dawn raid (either by denying access to the agency personnel or deleting or destroying records) may result in criminal liability.
During the investigation, the IAs may issue RFIs (to persons of interest, market participants, government agencies, among others), conduct dawn raids, and summon and depose witnesses. RFIs are subject to a very low legal grounding threshold as agencies are only required to make a prima facie showing of relevance of the requested information to their investigation. As a result of this, it is customary that the IAs issue lengthy RFIs to the aforementioned parties, which in turn only have a 10 business day term (extendable for an additional even period) to reply to the same and produce the requested information. Failure to produce such information may result in fines per day of non-compliance.
Depositions and interviews
The agencies may also resort to depositions and compulsory interviews of persons of interest, such as employees, directors and representatives. The threshold for calling a witness is substantially the same (pertinence for the investigation) to the threshold applicable to RFIs. Deposed individuals have the right to be accompanied by counsel but the ability of the latter is greatly restricted, as counsel is only allowed to object to questions which do not conform to the rules of the Federal Code of Civil Procedure.
At the administrative sphere, the General Superintendence has the following investigative powers: (i) request information and documents from any individual or legal entity, bodies, and authorities, whether public or private; (ii) request oral explanations from any individual or legal entity, body, and authority, whether public or private; (iii) conduct inspection at the head offices, establishment, office, branch or subsidiary of the investigated company, being able to make or require copies of any documents or electronic data; (iv) request to the Judiciary, by means of the Attorney-General’s Office, of dawn raid warrants; (v) request the examination and copy of documents and objects obtained in investigations and administrative proceedings opened by federal agencies or entities; (vi) require the examination and copy of documents and objects from police inquiries, lawsuits of any kind, as well as administrative investigations and proceedings established by other federal entities.
The FCCA has extensive investigative powers. These mirror, to a great extent, the powers conferred on the European Commission under Regulation 1/2003. The FCCA’s investigative powers include the following.
Requests for information
The FCCA may send requests for information to any undertaking, to which the latter has a legal obligation to reply. Where an under¬taking intentionally or negligently provides incorrect information in response to an information request, or fails to submit informa¬tion within the specified time limit, the FCCA may impose a fine. Furthermore, the intentional provision of incorrect information may entail criminal liability (a fine or imprisonment) under the Finnish Penal Code.
The FCCA may conduct inspections at undertakings’ business prem¬ises or private premises (e.g. residences of its directors). Advance notice of an inspection may be given but, and especially where undertakings are suspected of participation in a cartel, the FCCA tends to carry out inspections without prior warning. An inspection of private premises requires prior judicial authorisation to be granted by the Market Court.
While conducting an inspection, the FCCA has far-reaching powers of entry and seizure, and undertakings are required to coop¬erate with any investigation (article 37 of the Competition Act). The FCCA’s officials are empowered to:
- enter premises and examine books, financial accounts and other documents (including files and emails stored on computers, mobile phones and tablets);
- copy or take extracts from such books and business records;
- request on-the-spot oral explanations and record the answers given; and
- seal business premises and books or records for a period and to the extent necessary for the conducting of an inspection.
As regards the FCCA’s power to examine undertakings’ business records and to make copies of any documents relevant to the inves¬tigation, the FCCA generally takes the view that it is competent to decide whether a particular document is relevant to its investigation, except in the case of documents to which legal privilege is applied. Following the inspection, the undertaking may write to the FCCA setting out its objections to the inclusion of certain documents in the FCCA’s file.
Additionally, the reworked Competition Act, which will enter into force later this year, will enact the FCCA with broader inspection rights than previously. In the future, the FCCA has the right to conduct a so-called "continued inspection", whereupon the FCCA takes copies of the electronic material and continues reviewing the copied material in its own premises.
Moreover, in the course of an inspection the FCCA has the power to question representatives of an undertaking as regards explanations on facts or documents relating to the subject matter and purpose of the inspection. These answers can be recorded.
Power to question
According to article 34 of the Competition Act, the FCCA has the right to question representatives of business undertakings or other individuals who can reasonably be suspected to have acted in furtherance of the competition restriction being investigated. These questioning sessions may be recorded.
In accordance with section 15 of the Act, the Bureau can obtain search warrants and conduct raids. An application for an order under section 15 is heard ex parte. To obtain a search warrant, the Commissioner must establish that there are reasonable grounds to believe that a criminal offence has been or is about to be committed under the Act and that there is related information on the premises that will afford evidence with respect to the criminal offence.
The warrant allows Bureau officers to enter and search the premises, as well as to seize or copy the records and information that are the object of the warrant. Records are broadly defined and include all hardcopy and electronic records, including emails. While the Act specifies that a warrant may be executed anywhere in Canada, it is debatable whether the Bureau may also search the electronic data from foreign databases accessible from computers located in Canada.
Pursuant to section 11 of the Act, the Bureau can also obtain, on an ex parte basis, production orders, as well as orders for examinations under oath and for the delivery of a sworn written return of information. The judge must be satisfied that an inquiry is being made and that a person has or is likely to have information that is relevant to the inquiry. If so, the judge may issue the order.
Finally, in accordance with section 183 of the Criminal Code, the Bureau can obtain wiretap warrants, and intercept communications, when investigating cartel conduct.
According to Article 39 of the AML, the AMEA have following investigative powers:
- conducting on-premise inspections of the place of business of the investigated undertakings or other relevant places;
- questioning the undertakings, interested parties or other relevant entities or individuals, and asking for information about the situation;
- inspecting and duplicating related documents, contracts, account books, business correspondences, electronic data and other relevant documents or materials of the undertakings, interested parties or other relevant entities or individuals under investigation;
- sealing up and detaining relevant evidence;
- enquiring bank accounts of the undertakings.
In case the investigated party refuses to provide relevant materials, information, or provide false materials, information, or conceal, destroy, transfer evidence, or other refusing or obstructing conduct with respect to the investigation conducted by the AMEA, the AMEA may require corrections, and impose a fine up to 20,000 yuan to individuals and up to 200,000 yuan to undertakings. In case of serious circumstance, the individual shall be fined not less than 20,000 yuan but not more than 100,000 yuan, and an entity shall be fined no less than 200,000 yuan but no more than 1 million yuan; if criminal violation occurs, they would be subject to investigation and prosecution according to law.
The government has a number of investigative tools at its disposal, including wiretaps, search warrants, interviews, and subpoenas.
The government conducts voluntary interviews of individual witnesses and may have a cooperating witness place a covert, monitored phone call or initiate a monitored email exchange with alleged co-conspirators. The government can conduct a non-consensual wiretap of telephones or email with a demonstration of probable cause, which involves a detailed review by the court, and court approval.
Search warrants are often used in the form of a ‘dawn raid,’ so labelled because the Federal Bureau of Investigation [FBI] executes the warrant in the early morning hours. A search warrant is directed at a location, such as a corporate office, employee’s home, or international office, and/or devices such as computers, data repositories, cell phones, personal data devices, and servers. Subjects of a search warrant must refrain from destroying records/evidence and cannot impede the execution of the search.
The FBI typically will attempt to interview employees during a dawn raid or at any stage of the investigation. Employees are permitted to participate in these interviews, but they are not required to do so. They also may choose to participate with counsel present. Outside counsel can monitor the search and can represent participants in interviews. An individual must take care not to make false statements or hinder the FBI agents in the execution of a search warrant, to avoid criminal penalties under 18 U.S.C. §1001 and concerns regarding the obstruction of justice.
The DOJ also can serve grand jury subpoenas for documents and testimony. The DOJ first must convene a grand jury, who acts as an investigative body to determine whether there is adequate basis for bringing a criminal charge against a suspect. A grand jury may investigate ‘merely on the suspicion that the law is being violated, or even just because it wants assurance that it is not.’ United States v. Morton Salt, 338 U.S. 632, 642 (1950).
A subpoena is a written, legally enforceable demand that a party produce records or testimony before a grand jury on a given date. Individuals can claim a Fifth Amendment privilege against self-incrimination and refuse to produce documents but legal entities that are not individuals, such as corporations, cannot.
Investigative powers of the Japanese relevant authorities differ depending on whether the investigation is an administrative procedure or a criminal procedure.
- Dawn Raid and Seizure
a) Administrative Procedure
The JFTC has the power to enter the subject party’s premises, review documents and other objects and to order the subject party to submit documents and other relevant evidence.
Under the administrative procedure, the subject party’s legal counsel are normally permitted to monitor the JFTC’s dawn raid, and the JFTC will, in principle, allow the subject party to take copies of the documents produced to the JFTC.
b) Criminal Procedure
Subject to a valid warrant, the JFTC has the power to use force to enter the subject party’s premises and seize relevant documents and evidence. In principle, legal counsel’s attendance at the dawn raid is not permitted in the case of a criminal procedure.
For both administrative procedures and criminal procedures, the JFTC has the power to conduct compulsory interviews with individuals relevant to the investigation. Attendance by legal counsel to the interview is not permitted and recording and memo taking by the interviewee during the interview are likewise prohibited.
- Request for reporting
For both administrative procedures and criminal procedures, the JFTC has the power to request that the subject party report and/or explain relevant facts, etc. concerning the issues subject to the investigation.
The MyCC is granted wide investigative and enforcement powers for any infringement or offences committed under the CA. The CA expressly provides that the MyCC officer investigating any commission of an offence under the CA shall have all or any of the powers of a police officer in relation to police investigation in seizable cases. Further to the police-like investigative powers, the MyCC also has the power to require the provision of information, retention of documents as well as the access to records, books, accounts, or other things for the purpose of carrying out any of the MyCC’s functions or powers under the CA.
The Secretariat has broad investigative powers. It may send requests for information to the undertakings concerned as well as to third parties (such as competitors or suppliers), ask for statements and interrogate parties and witnesses. The parties to the investigation are, in principle, required to disclose information and documents. The Commission has the power to order inspections, dawn raids and seizures. In the case of a dawn raid, the Secretariat has the right to search all types of premises, both business premises and private apartments, and all types of devices. In the field of electronic data, the search authorisation extends to all data that can be accessed from within the searched premises irrespectively of the actual place of storage. The Secretariat conducts interrogations of directors/employees already during the dawn raid.
The undertakings concerned have an obligation to endure the dawn raid passively and not interfere with any investigation activity. Undertakings subject to an inspection have the right to be assisted by external lawyers.
The investigative authorities granted to the Competition Authority are parallel to the investigative authorities of the Israel police on suspicion of committing other criminal offences. Subject to the receipt of a judge's decree (which is usually granted by the request of the Competition Authority), the Competition Authority is authorized to carry out wiretappings, arrests, raid a house or business, seize documents, investigate suspects, collect evidence and appeal for detention. During the Competition Authority's raids, documents are usually seized on a very wide scope, and except for cases that privileges (such as attorney-client privilege) are existed, the Competition Authority is not limited in the types and scopes of the documents it may seize. Even if a criminal investigation is not initiated, it is sufficient that the Competition Commissioner finds that it is possible to promote the enforcement of the provisions of the Competition Law in order to grant him the authorization to apply to any person under Section 46(b) of the Competition Law and demand the provision of information and documents.
In accordance with Article 27 of the Act of 2013 on the creation of the National Markets and Competition Commission, the CNMC is entitled to conduct unannounced inspections at the premises of undertakings on the grounds of an order signed by the Director for Competition. In this context, the CNMC have the following powers:
(i) entering any premises, facilities or means of transport of undertakings or associations of undertakings, as well as the domicile of their directors or employees, provided that either the affected party consents or the competent administrative court authorises it;
(ii) accessing any books, records or other documents in any format, which are accessible from those premises and related to the subject-matter of the inspection;
(iii) seizing copies of such documents in any format;
(iv) retaining such documents for a maximum of ten days;
(v) sealing any premises, documents or assets of the undertaking for the time and to the extent necessary for the inspection, providing that either the affected party consents or the competent administrative court authorises it; and
(vi) requesting and recording explanations on facts and documents related to the subject-matter of the inspection from representatives or employees of the undertaking.
According to Article 28 of the Act of 2013 on the National Markets and Competition Commission and Article 39 of the Competition Act 2007, the CNMC is also vested with the power to address requests to any natural or legal person or public body in order to obtain any information that is deemed necessary for the enforcement of competition rules, provided that sufficient reasons are stated and the request is proportionate to the aim pursued. The deadline to respond is ten working days unless otherwise provided - by stating reasons - and an extension for an additional five working days may be granted.
In conducting cartel investigations, the CC is vested with extensive powers. In general terms, the CC's powers of inspection are nevertheless confined to the limits set by a judicial authorization that is compulsory to be obtained ex ante any investigative procedure and is normally granted within an 'in chambers' session presided over by the Presiding Judge of the Bucharest Court of Appeals.
In Romania, investigations normally begin with an unannounced inspection at the premises of the investigated companies. Simultaneous inspections are carried out for multiple premises and multiple investigated companies. The inspections are ordered by the President of the CC via a formal order and are authorized by a court ruling, as mentioned above. Private residences and vehicles of individuals may also be raided, subject to a due authorization from the court. The order of the CC President for undertaking unannounced inspections is subject to review by a court of law.
In recent years, the CC has decided to simplify the manner in which unannounced inspections are being carried out so that the disruption of an investigated company's activity is kept to a necessary minim. Specifically, electronic-form documents and correspondence are printed only in exceptional cases, and entire hard drives and/or servers (including cloud storage, and mobile terminals as well) are collected by making true copies thereof with the aid of special forensic software and equipment. Documents and information existing solely in hard copy are nevertheless still copied via mechanical means. Personal information should not be copied, likewise information and documents covered by the attorney-client privilege.
The inspectors running the dawn-raid are also empowered to ask the questions that they consider necessary and to solicit that employees or management members provide written statements during the dawn-raid. The latter may refuse to be interviewed (and are always entitled to specialized counsel), but such interviews have been quite scarce in the CC's practice.
After the dawn-raid is completed, a forensic inspection at the headquarters of the CC begins in respect of electronically-collected data and information. It is run by the investigation team and it is duly authorized by the Presiding Judge of the Bucharest Court of Appeals for an initial period of up to three months. Such period may be extended by the court, if requested by the CC. During such forensic examination phase, the documents copied are identified and skimmed through (forensic tools allowing also the identification and preview of deleted documents). Also in this phase, the rapporteur and its team may ask questions and conduct interviews, if the case. Documents are marked and collected at the end of the forensic investigation procedure. True copies are made from the collected documents for both the investigation team and the investigated party. Only these are part of the investigation file, while the electronic copies made on occasion of the dawn-raid are sealed and must be destroyed at the end of the investigation procedure.
The key investigative powers in relation to Chapter I investigations are as follows.
(i) Information requests
The CMA may, where it has reasonable grounds to suspect that there has been cartel conduct, give written notice requiring any person (including third parties) to provide specified documents or information relevant to its investigation. Refusal to comply with a formal information request without reasonable excuse is punishable by a fine, and it is a criminal offence to provide false or misleading information or to destroy, conceal or falsify documents.
(ii) Dawn raids
The CMA may conduct unannounced inspections to search for relevant documents or information evidencing cartel conduct. Dawn raids are typically used at the outset of an investigation (and sometimes later on in the process) where the CMA suspects there is a risk that evidence might otherwise be destroyed.
During a raid, the CMA may require the production of documents, take copies of relevant documents and require on-the-spot explanations of any such document. If the raid is carried out pursuant to a court warrant, the CMA will also be able to use reasonable force to obtain entry, and will be entitled to take away originals of documents, hard drives, mobile phones and other electronic devices.
The CMA has the power to require individuals connected to a business which is a party to an investigation to answer questions (in the form of a compulsory interview). Any information obtained by virtue of the exercise of this power will not be able to be used against that person in a criminal prosecution, except in certain limited circumstances.
The key investigative powers in relation to criminal cartel investigations are broadly as above, albeit with some additions. For example, in a criminal cartel investigation the CMA may carry out intrusive (covert) surveillance in respect of residential premises and private vehicles. The CMA is also authorised to obtain access to communications data (such as records of telephone numbers called) in criminal investigations. If the SFO is involved, it may use its (broadly equivalent) powers of investigation under the Criminal Justice Act 1987.
The Commission has a wide discretion to collect any information it considers necessary, subject to the general principles of proportionality and the rights of defence. Its principal powers of investigation under Regulation 1/2003 are as follows:
a) Information requests
Formal information requests (‘Article 18 requests’) are widely used as a means of obtaining necessary information, including internal documents and data. Information requests may also be addressed to third parties, such as competitors and customers. In practice, these requests can be very burdensome (especially at the initial fact-finding stage), but there is some possibility to negotiate reasonable limitations to their scope and/or extensions to the deadline to respond. Regulation 1/2003 permits the Commission to impose fines of up to 1% of total annual turnover for providing incorrect or misleading information, or for failure to supply information.
With respect to non-EU companies, the Commission is often able to exercise its enforcement jurisdiction by sending the request to a subsidiary located in the EU. Where this is not possible, the Commission’s practice is to send out informal requests (without the ability to rely on its fining powers in Regulation 1/2003).
b) Dawn raids
The Commission can conduct investigations of firms’ premises pursuant to a formal Commission decision or under an ‘authorisation’. If an inspection is carried out on the basis of a formal decision (almost inevitably the preferred route in cartel cases), it is compulsory for the company to allow the investigation to proceed and fines may be imposed for refusal to submit to the investigation.
When carrying out dawn raids, Commission inspectors are broadly empowered:
- to examine the books and other records related to the business, irrespective of the medium on which they are stored;
- to take copies of such books or records;
- to seal any business premises for the period of the inspection; and
- to ask any representative for explanations of facts or documents relating to the subject matter of the inspection.
Commission officials do not have the power to force entry. However, as dawn raids are often carried out in conjunction with NCAs, such entry could be permitted under national search warrants.
The Commission also has the power – subject to obtaining a court warrant from the relevant national authority – to inspect residential premises if there is reasonable cause to believe relevant evidence is kept there. During the investigation procedures in the Marine Hoses cartel (Case COMP/39406), the Commission carried out an on-the-spot investigation in a private home for the first time.
c) Power to take statements
In addition to its power to ask for on-the-spot explanations during an inspection, the Commission is empowered to take statements from any person who is willing to testify. The recent judgment by the Court of Justice (ECJ) in Intel clarified that no distinction will be drawn between ‘formal’ and ‘informal’ interviews for these purposes and that the Commission must record any interview it conducts in the context of an investigation.
The Antitrust Law provides the Antitrust Commission with several standard investigative powers, such as:
(i) the ability to summon witnesses for hearings;
(ii) examinations of books and documents;
(iii) the issuance of requests of information to other regulators;
(iv) the initiation of investigations ex professo; and
(v) the execution of dawn raids with a court order.
Pursuant to the Competition Act section 24, the NCA is empowered to request information relevant to the potential infringement. This comprises documentary evidence as well as statements from any relevant person. The undertaking is obliged to provide the NCA all required information. Relevant exemptions from this obligation relates to self-incrimination and legal privileged documents.
Where there are reasonable grounds to suspect an infringement of the Competition Act, The NCA may also get access to properties and premises, cf. the Competition Act section 25. Such access is dependent on decision by the District Court. The NCA may confiscate or seal important evidence for closer examination. Usually, only copies will be seized. However, original documents will be seized in cases where the original in itself have a particular value as evidence.
Section V of Protocol 4 grant ESA the power to request information, take statements and to conduct inspections.
The investigation is carried out by the Investigation Service under the direction of the Competition Prosecutor General who will compose a team of Investigation and Prosecution Service personnel members.
The BCA has the power to organize surprise inspections at the undertakings premises, at other locations they suspect they can find evidence and at the private homes of individuals involved. A surprise inspection requires a clear mandate from an investigating judge, as well as a copy of the “ordre de mission” of the Prosecutor that sets out the scope and objective of the inspection.
The guidelines on surprise inspections, adopted by the BCA at its meeting of 17 December 2013 set out in larger detail their powers:
- The Investigation Service can request the production of information and documents. They make copies of these documents, they cannot take the originals with them.
- They can interview persons in charge and personnel in relation to the subject matter of the inspection and in relation to the internal organisation of the undertaking;
- They can search computers, either manually or with a specific software;
- They can seize and seal during the searches, but for no longer than 72 hours;
- All these actions are confined within the purpose of the mission order. The Investigation Service is not allowed to go on a fishing expedition.
Next to surprise inspections, the BCA can also send out requests for information to the undertakings, failure to respond correctly or respond at all may result in additional fines or penalty payments. In addition, breaking seals or otherwise tampering with the investigation will result in additional fines.
The HCC has extensive investigative powers, which mirror the European Commission’s investigative powers in all key aspects. According to article 38 and 39 of the Competition Act, for the finding of an infringement under competition law, the authorised employees of the Directorate-General of the HCC exercise powers of a tax inspector and have the competency, in particular:
- to examine every time and category of books, data and other records of the undertakings and associations of undertakings, as well as the electronic professional correspondence of the businessman, the people authorised for administration or management and the personnel, irrespective of the medium on which they are stored,
- to carry out confiscation of books, records and other evidence, as well as electronic means of storage and transfer of data,
- requests for information addressed to undertakings directly or indirectly involved and to market operators;
- to conduct inspections of business premises, non-business premises, means of transport of undertakings or associations of undertakings concerned (dawn raids), as well as the homes of directors, managers, and other members of staff of the undertakings and associations of undertakings concerned, under the conditions set by law, and
- to request information from an undertaking and/or association of undertakings or natural person in the context of an investigation (in the means of sworn or unsworn statements).
In addition, the HCC may address compulsory requests for information also to public or other authorities. Public authorities and legal persons governed by public law have a duty of information. In the event of refusal, obstruction or delay in providing the information requested, the HCC may file an official report so that disciplinary action can be taken against civil servants or employees of public-law legal entities for the above infringements, which are a disciplinary offence.
With regard to in situ inspections, a court warrant is not a prerequisite in order to conduct such inspection of business premises; it must be obtained, however, if the undertaking subject to the investigation refuses to accept the investigation. Similarly, in all inspections of non-business premises, a judge or public prosecutor should be present. In any case, when exercising their powers, employees of the Directorate-General of the HCC abide by the provision of article 9 of the Constitution on the asylum of residence.
Upon conclusion of the investigation, a statement of objections (SO) is drafted and submitted to the HCC’s Competition Commission to decide whether the alleged infringement has been substantiated or not. The decision of the Competition Commission is issued within 30 days from the last session in which the examination of the case was concluded.
The CCI and the DG have wide powers for discharging their functions. Their powers include:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit; and
(d) issuing commissions for examination of witnesses or documents.
Further, the DG also has the power to conduct dawn raids where there is a strong suspicion that relevant material may be destroyed, mutilated, altered, falsified or secreted by the enterprises and individuals under investigation. Before conducting a dawn raid, the DG must secure a prior authorisation (search warrant) from the Chief Metropolitan Magistrate, New Delhi. This power is being increasingly exercised.
DG officials conducting the dawn raid may:
(a) use reasonable force to access the premises, including domestic premises such as houses, land and other means of transport of individuals;
(b) actively search for information;
(c) examine the books and other records related to the business in physical and electronic form;
(d) seize, take copies and originals of documents. The DG however is required to return the documents not later than the conclusion of the investigation;
(e) seize and copy hard drives, servers and electronic devices including laptops, tablets and mobile phones;
(f) seal any business premises and books or records for the period and to the extent necessary for the inspection; and
(g) take statements for the purpose of collecting information relating to the subject matter of the investigation.
The SCA has extensive powers to request information, documents and other materials both from companies suspected to have committed an infringement and from third parties. The SCA can also order persons to submit to an interrogation. Orders and requests by the SCA may be issued under penalty of a fine. Privilege against self-incrimination applies (reflecting the European Convention on Human Rights).
The SCA can apply to the Patent and Market Court for authorisation to conduct on-site inspections (i.e. dawn raids) at the premises of suspected companies. The Patent and Market Court may in special circumstances also authorise on-site inspections at the homes of board members and employees of the company subject to investigation or the premises of companies which are not subject to investigation if there is reasonable cause to believe that relevant evidence is kept there. When carrying out dawn raids, the SCA benefits from inspection powers similar to those of the European Commission. The SCA is empowered to:
- examine books and other business records regardless of the media on which they are stored;
- make copies of or take extracts from books and business records;
- ’mirror’ digitally stored material for subsequent in-depth search at the SCA’s premises (after prior consent from the company inspected);
- ask employees for explanations of facts or documents relating to the subject matter of the inspection (however, the interviewee is not required to provide any incriminating information);
- access any premises, land, modes of transport and other areas; and
- seal business premises for the period of the inspection.
The CPC has extensive investigative powers which include the following:
Right to request the submission of information/documents and to demand responses to specific questions.
The CPC may collect information that is necessary for the exercise of its competences, powers and duties, both on its behalf as well as on behalf of other Competition Authorities, by addressing to that effect a written request to undertakings, associations of undertakings, natural persons or public or private entities. When sending a request, the CPC shall specify the required information, the reasoning of the request, a reasonable time-limit for the provision of information which may not be less than twenty days and the possible sanctions in the event of non-compliance with the above obligation for the provision of information. The undertakings, associations of undertakings, natural persons or public or private entities to which the request by the CPC is addressed to, shall be bound to provide, in due course, in full and accurately all the information required within the time-limit fixed.
Where the reply is incomplete or there is a need for further clarifications and/or investigation, the CPC may submit a new request to obtain clarifications and/or explanations. The time-limit for the provision of this information and/or clarifications may not be less than 7 days.
Right to carry out compulsory interviews with individuals
The CPC in the exercise of its competences, powers and duties under the Competition Act can conduct interviews with any natural or legal person that consents to it, in order to take statements regarding the subject of the investigation that is conducting.
The CPC has the power to carry out unannounced inspections (dawn raids) at any office, premises, land and means of transport of undertakings or associations of undertakings. It may examine all archives, books and records relating to the business, make copies of all such books and records and/or ask any officer or employee for explanations which may be recorded. The dawn raids are carried out by the Service on request of the CPC and may be accompanied by other public officers that CPC deems necessary. The request of the CPC to the Service shall be in writing and shall specify the subject matter and the purpose of the investigation, the date to commence, the basis of the inspection and the sanctions if the undertaking(s) fail(s) to comply.
The information received by the CPC during the dawn raid may be used only for the purpose for which the inspection is allowed, with the exemption of those cases where this proves necessary for the application of the European Union competition law. The information obtained during the investigation that contains business secrets and information of a confidential nature are protected and the officials who perform the investigation have a duty of secrecy and are bound not to communicate and/or publish such information, except when this is necessary for proving an infringement of sections 3 and/or 6 of the Competition Law and/or Articles 101 TFEU and/or 102 TFEU or for implementing the provisions of the Competition Act.
Every person to whom questions are submitted or from whom explanations are requested during the investigation has the obligation to provide the investigating officer with any facilitation, any information, and any declaration on whether the information he provides to the investigating officer is true.
An inspection of private premises requires the issue of a duly reasoned judicial warrant. In such cases, the CPC may apply to the Court to issue a warrant, ordering the conduct of an inspection, as long as there are reasonable suspicions that in that place there are records, accounts, books, other records related to the business or other particulars relating to the investigation of the case.
Power to conduct investigations in sectors of the economy or types of agreement
The amendments made to the Competition Act granted a further power to the CPC. More specifically, the CPC has the power, after the amendment of the Competition Act in 2014, to carry out sector inquiries in specific sectors of the economy or specific types of agreements when the trend of trade, the rigidity of prices or other circumstances create suspicion that competition may be restricted or distorted in the Republic.
The Ministry of Economy, including the Competent Authority, has wide powers in relation to the investigations related to the violations of the UAE Competition Law & its Regulation. The Competent Authority has the power, on its own initiative, to commence an investigation into possible violations of the provisions of the Competition Law (“Automatic Investigation”) if it has reasons and information regarding the existence of practices that may violate, restrict of prevent competition. Further, the Competent Authority commences an investigation upon the request of any interested party who files a complaint with the Authority alleging violation or breach of the Competition Law in UAE (“Investigation based on Compliant”).
Upon the investigation, the Competent Authority has the power to request the parties of the complaint and all concerned parties to provide any data or information which the Authority deems necessary to decide on the complaint in addition to request the parties to provide evidences or documents that are related to the complaint.
During the investigation, the Competent Authority always has the power to request and/or communicate with other governmental authorities, such as Tax authorities, Customs or any other federal or local authorities, to reveal any information about parties commercial activities, revenues or any other elements that are required for the purpose of investigation. Information about parties’ activities and revenues, which can assist Competent Authority to conclude its investigation, are usually made available if official written requests are made and communicated.
The Competent Authority has the power and right to request holding meetings with the parties of the complaint, their representatives and all concerned parties to investigate with them and review their opinion and statements before considering and issuing a decision in relation to the complaint.
The UAE Competition Law requires from the Competent Authority to take steps to maintain as confidential, information or evidences which are considered sensitive for the parties of the complaint. To claim confidentiality, parties shall indicate the same on information submitted as part of their submissions and also submit non-confidential summaries of the same.
The Competition Law and Regulations stated that the parties shall submit copies of the complaints and/or responses and pleas in Arabic language along with a certified translation with the same into English. Further, the Law and Regulations stated that the evidences and documents of the parties must be submitted in the original language in which such documents or evidences are drafted or issued, along with a certified translation into Arabic, if the original language is not the Arabic language.
The Competition Law and Regulations did not explicitly state that the parties shall submit the original copies of evidences or documents, however, the Competent Authority has the right to request the parties to submit the original documents for the purpose of verification, and thereafter, the Authority may return the original documents to the parties unless retaining the same would be necessary for issuance of the decision in relation to the complaint.