European commission adopts modified explanatory note on the authorisation to conduct an inspection

On 18 March 2013, the European Commission adopted a new version of its explanatory note to the authorisation to conduct inspections following a Commission decision under Article 20 (4) of Council Regulation No 1/2003.The main changes in the revised explanatory note relate in practice to IT-searches.

The Commission clarifies the scope of an IT-search, which can deal with the IT-environment and storage media of the undertaking, including: laptops, desktops, tablets, mobile phones, CD-ROM, DVD and USB-keys. It also sets out the tools that can be used in such a search, that are not limited to built-in keyword search tools, but also dedicated software and/or hardware of the Commission.

In addition, the Commission for the first time clarifies that the undertaking has the obligation to cooperate fully and actively with the IT-search. In the Commission’s view this does not only mean that the undertaking has to provide explanations on the IT-environment, but also assist the Commission in specific tasks, such as temporarily blocking individual email accounts, disconnecting running computers, and providing “administrator access rights”. In the execution of such tasks, the Commission may decline to use the hardware provided by the undertaking. The Commission has recently followed this approach in a decision imposing a fine of Euro 2.5 million on EPH for unblocking an email account and diverting emails of several key individuals to a separate computer server. EPH has brought an action against the Commission Decision.

The Commission also reaffirms its authority to make a full copy of the data contained on the storage media for continued inspection outside the premises of the undertaking. To preserve the chain of custody, the copy is placed in a sealed envelope. The undertaking is invited to attend the opening of the sealed envelope in the Commission's premises and to continue to assist the inspection. The Commission seems to have interpreted the General Court judgments in the recent Nexans and Prysmian cases as a confirmation of this practice. In those cases, the General Court dismissed the actions brought against the Commission's use of the sealed enveloped procedure because it was not considered separable from the inspection decisions and therefore not capable of being challenged on their own. Nexans' further appeal before the ECJ of Nexans against the General Court judgment does not seem to cover this aspect of the judgment although the parties could also address the matter in an appeal against an eventual Commission Decision in the underlying cartel.