Belgian Competition Authority Adopts Guidelines on Conduct of Inspections

On 24 December 2013, the Board of Directors of the Belgian Competition Authority (“BCA”) published in the Belgian Official Journal (Belgisch Staatsblad / Moniteur belge) its Guidelines on competition inspection procedures (the “Guidelines”). The Guidelines codify and release to the public rules of which competition officials have since 2011 been informing the undertakings under inspection.

The Guidelines are broadly similar to the Explanatory Note to the authorisation to conduct an inspection published by the European Commission, containing its own inspection rules (the “Explanatory Note”). However, some issues covered in the Explanatory Note were omitted from the Guidelines, such as the possibility for the inspectors to delay slightly the beginning of the inspection to wait for the undertaking’s lawyers to arrive and details on the treatment of oral explanations given by the undertaking during the inspection. In addition, the Guidelines do not require the undertaking to cooperate actively with the inspection (merely stating that it is bound by law to submit to the inspection). In addition, they do not refer to any obligation for the BCA to “sanitise”, i.e., to remove its forensic IT tools from any of the undertaking’s data, once the inspection has been completed.

By contrast, the Guidelines mention that any list of keywords used to search for relevant information in the undertaking’s data will be provided to the undertaking together with the minutes of the inspection, whereas the Explanatory Note is silent on this issue. In addition, the Guidelines clarify the treatment of documents considered by the undertaking as falling outside the scope of the warrant (“out of scope documents”) and documents protected by legal professional privilege (“LPP”). It is interesting to note that LPP is presented by the BCA as extending to documents issued by in-house counsel, even though this definition of LPP is currently challenged by the BCA before the Belgian Supreme Court, following a judgment given by the Brussels Court of Appeal on 5 March 2013 (See, VBB on Belgian Business Law, Volume 2013, No. 3, p. 2, available at www.vbb.com).