EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

only to enter a competitor’s premises, but also to secure its documents, internal materials, email communications or all types of data sets. The inspection thus constitutes a significant interference with the privacy not only of the competitor himself, but also of his employees. There is therefore no doubt that the inspection and the securing of evidence must be carried out in full compliance with the law and not exceed the legitimate expectations of competitors. In the current conception of law, it is more than obvious that its interpretation is for the correct application of law (Gerloch, A.; Tryzna, J.; Winter, J., 2012). In our case, it is primarily a question of interpreting the legal certainty of competitors and their possibilities of procedural defence not only at the time of the inspection itself, but also after its completion. Legal certainty is not itself an absolute concept, and is always relativised, softened, by the degree of probability for a particular situation. Our aim should be to define at least a basic limit for determining the limit of legal certainty for competitors. The inspection itself is often the culmination of the long and demanding work of the Competition Office, which must be sufficiently substantiated thanks to the rich case law of the national and especially the CJEU. Thanks to the administrative practice of competition authorities and judicial case law, we can consider that an inspection can be divided into three basic phases, namely the phase. • exploratory • implementing • evaluating For each of those stages, it is possible to identify a legitimate expectation of legal certainty both on the part of the competitor under investigation and on the part of the competition authority. Thanks to technological changes in all areas of life, when modern information technologies are increasingly used, the conditions and rules for carrying out inspections are regulated in much more detail, compared to those used at the end of the last century (Jalabert-Doury, N., 2020). This fact immediately has two aspects. First. Officials carrying out the inspection must be adequately trained not only what indications and evidence can be searched for in the investigated entity, but also how to document or take their own evidence. To this end, most competition authorities around theworldhave an internalmethodologyon the conduct andactual conduct of an on-site inspection verification. Despite the recommendations of the European CompetitionNetwork (hereinafter the ECN) and the COMPETITION SECTION of the OECD, the procedures of competition authorities in conducting inspections within the European Union (hereinafter the EU) may often differ. For this reason, the European Commission (hereinafter the EC) has adopted Regulation 1/2019, ECN +. Differences in procedural procedures and inspection

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