Dawn Raids - How Far Does An Undertaking's Duty To Cooperate Go?

The Slovenian Competition Protection Agency ("Agency") has lately increasingly been using unannounced investigations or so-called "dawn raids" in order to secure evidence of potential competition law breaches. This is why the answer to how undertakings should react to such inspections is becoming an ever more important topic.

Whereas the Slovenian Prevention of Restriction of Competition Act ("Competition Act") is rather short on the respective topic, the Agency (encouraged by a recent decision from Slovenia's Supreme Court) has shown in its public announcements that it intends to take a rather broad interpretation of undertakings' general duty to cooperate. The question is how far the Agency may and will actually go.

Legislative framework for the scope of the investigation

Agency officials may enter the premises at the registered corporate seat of the undertaking subject to an investigation and any other premises in which the respective undertaking or other authorised undertakings carry out activities and business operations from which a violation of competition law might have arisen. Access to all premises related to business may be requested and all data carriers inspected with the only exemption being attorney-client privileged correspondence and employees' private correspondence.

It must also be noted that at the moment, an investigation decision issued only by the Agency suffices as the basis on which officials of the Slovenian Competition Protection Agency are entitled to both carry out investigations and to enter the business premises . The latter is anticipated to change as the Constitutional Court has decided that such a regime goes against basic constitutional principles, and the requirement for an ex ante court order, when the privacy of dwellings and/or communications is being impaired, should apply to legal persons subject to Agency investigation. Amendment to the Competition Act in this respect is already in Parliament.

Agency's investigative powers and undertakings' duty to cooperate

The Agency officials may, inter alia, exercise the following investigative powers:

enter and inspect premises, land, and means of transport at the registered office of the undertaking and at other locations, examine books, contracts, papers, business correspondence, business records, and other information relating to the business of the undertaking, irrespective of the medium on which they are stored, take or obtain in any form copies of or...