Dealing with Dawn-Raids by Ireland’s Competition and Consumer Protection Commission
Ireland’s Competition and Consumer Protection Commission (CCPC) regularly dawn-raids businesses, professional bodies, trade associations and homes. Everyone in business in Ireland needs to be briefed on how to deal with such unannounced visits. A&L Goodbody’s EU, Competition and Procurement Group briefs you on what you need to know.
It Could Happen to You
You are sitting at your desk. The phone rings. Your receptionist says that a number of people from the CCPC including the Gardaí (the Irish police) are in reception armed with a District Court warrant. Before you hang up, one of the investigators is in your office determined to search through your files, check your computer and your mobile phone, scan your e-mails, read your diary, and ask you various questions about what you did on a particular date in the past. Businesses, professional bodies and trade associations in many economic sectors throughout Ireland would testify that the occurrence of these dawn-raids is a genuine risk.
The CCPC is the independent agency charged with regulating anti- competitive and anti-consumer business practices in Ireland. It has wide powers of investigation. Breaches of the Competition Act 2002 (as amended) may expose:
- businesses to fines of up to the greater of €5 million or 10% of world-wide turnover; and
- senior officers of those businesses to fines of up to €5 million and/ or imprisonment for up to ten years. These penalties are imposed by the courts while the breaches are investigated by the CCPC. Dawn-raids are conducted by authorised officers of the CCPC (including the Gardaí). The CCPC will often assist the European Commission on joint raids in Ireland when the Commission is investigating breaches of EU competition law. The CCPC can also carry out a dawn raid to assist the competition authority of another Member State regarding a breach of EU competition law.
The CCPC conducts dawn-raids to gather information or evidence about alleged breaches of Irish and/or EU competition law. Such breaches include anti-competitive arrangements, abuses of dominance and unfair consumer practices. You may be dawn-raided because it is suspected that you have evidence of a breach of Irish and/or EU competition law or breaches of Irish consumer protection law whether committed by yourself or by others. Dawn-raids are usually the result of either own-initiative investigations by the CCPC or of investigations following complaints from third parties.
The CCPC may search any place where activity in connection with the business is carried on. Most dawn-raids are on offices but dawn-raids can also be conducted on a wide range of other places including the homes and vehicles of directors or employees, if the CCPC believes that relevant information or evidence is kept at those locations.
The CCPC carries out dawn raids at any time during normal working hours, which may or may not be first thing in the morning. Visits can last an entire business day or longer. Your day’s business may be entirely disrupted as the CCPC’s officials roam around your offices and ask questions of you and your staff. Do not break any seal if property or rooms are sealed and take legal advice on how not to impede the dawn raid.
What does the CCPC do?
The CCPC arrives unannounced. The CCPC may enter premises by reasonable force if necessary. They present a copy of the District Court warrant which authorises the CCPC to conduct the dawn-raid. Typically, the investigators divide into groups. One group reads through files, diaries and other documents. Another group copies documents. A third group examines computers and makes copies of computer files. The CCPC may also seize original documents to take them away and may seize computers and laptops, as well as copying entire hard drives. After reviewing the information, the CCPC will probably conduct interviews with some executives and other employees in the building about matters under investigation. The CCPC will give you an inventory of the documents which have been copied and the original documents it has seized. You do not need to sign the inventory but you should take a copy of it.
What Should You Do?
- The receptionist should immediately contact the person in your organisation who is briefed to take charge of the situation. This person should act as co-ordinator of the investigation. Ideally, your organisation should have a member of the management briefed in advance on how to deal with such raids.
- Check the warrant presented by the CCPC. Does it correctly name the business? Does it relate to the correct address? Ask for each authorised officer’s proof of identity and warrant of appointment and take a copy of each. Ask the CCPC to wait for the co-ordinator to arrive (though it is not obliged to do so and often will not do so - in that event do not obstruct or impede them). Establish if the CCPC is simultaneously raiding premises of subsidiaries or homes of employees.
- Call your specialist competition lawyers (contact details below) who will travel immediately to your offices and, as lawyers, be able to give you privileged legal advice. Alert all relevant management personnel, head office and your PR team or consultants. Stress that matters are confidential.
- Identify the CCPC’s team leader and ask them what the purpose of their visit is.
- Have a member of your management team accompany each CCPC official at all times and note everything they say and do.
- The CCPC may copy all relevant documents, or choose to seize the originals. The CCPC may take possession of correspondence with lawyers and subsequently apply to the High Court for a determination as to whether it is legally ‘privileged’. If the CCPC tries to copy or seize such documents formally ask that they be kept separately from other documents copied or seized and that they not be reviewed until a determination has been made as to whether they are legally privileged.
- Make a second copy of each document which is being copied by the CCPC. Make a copy of each original document which the CCPC proposes to take with them. Read the copies which are being made by the CCPC and the originals which are taken. This is particularly important for anyone who may be asked questions by the CCPC at the end of the dawn-raid.
- The CCPC is likely to search computer files and copy other specific documents, files or possibly an entire hard-drive. They shall only copy files relating to the business named in the search warrant. If they try to copy other files (or seize a computer or laptop without clearly showing that such files are relevant to their investigation), object formally and then ask that the copy (or computer or laptop) be put to one side for your lawyers to discuss with the CCPC after the dawn-raid, as to whether it may be copied or taken. If not, ask that it be sealed until your lawyers have been able to verify the relevance of the contents with the CCPC. Try to ensure that a copy is made of whatever computer records are copied and/or taken by the CCPC.
- If the CCPC or Gardaí question you, then only answer if the CCPC states that you are being compelled to do so under the law. State you are only answering under compulsion. Answers must be truthful and accurate because it is an offence to mislead the CCPC or the Gardaí. However, if you do not know the answer to the question then say so – you are not expected to know everything. Never speculate about what you think the answer is – always be certain and only answer what you know (and what you are obliged to answer). Seek legal advice before answering questions generally but particularly questions which could incriminate you. If you are cautioned (e.g. by the Gardaí or the CCPC) you should invoke your right to silence.
- Keep detailed contemporaneous notes on the dawn-raid. Have a tape recorder available for any interview.
- Do not issue a press release or comment publicly on the dawn-raid unless it becomes public knowledge. Advise your staff that confidentiality is imperative in this situation and do not disclose the dawn-raid to any third party.
- Co-operate with the CCPC and do not obstruct or impede the investigation at any time as this is an offence. While the investigation may seem unreasonable, the CCPC has wide legislative powers of search, seizure and interrogation.
- After the dawn-raid, gather your employees for a full de-brief and to identify any steps that may be required to correct any errors during the dawn-raid.
A&L Goodbody’s EU, Competition and Procurement Group is at the forefront of competition law developments in Ireland. The Group represents national and multi-national corporations, trade associations, professional bodies and government interests. For further information please Dr Vincent Power, Anna-Marie Curran, Alan McCarthy or a member of our EU, Competition & Procurement Team.
The contents of this note are necessarily expressed in broad terms and limited to general information rather than detailed analysis or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.