EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

is necessary to carry out an inspection in an apartment or private area where an employee of the competitor under investigation works (Hastings, P., 2021).

2. Verification visits

2.1 Authorisation to carry out a local investigation An on-site inspection itself, at none of its stages, can be carried out without a predetermined authorisation.Thismust be in line with clearly defined procedural safeguards in advance. These are formed not only by law but also by case law, thereby creating a legitimate expectation of legal certainty that initial raids will be carried out only by entities that are authorised to do so. With permission to carry out a dawn raid, I always ask myself who and in what administrative mode is authorized to carry out their own morning raid. With regard to the question of the entrusted public authority in the field of competition, for many years there has been no doubt that the authority entrusted with the inspection is always the competition authority. Here, too, we must take into account the existence and membership of individual states in the European Union, which extends the number of potentially authorised entities that carry out the initial raid not only on the authorities of a particular Member State, but also on the European Commission. In addition, we must also take into account that cooperating competition authorities may also be eligible. The determination of the inspection authorisation must therefore be based on Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 and 102 of the Treaty (hereinafter referred to as “the Regulation”) and Articles 20 to 22. and the definition of authorisations to carry out initial raids in the different legal systems of the Member States. In addition to the above, the authorisation is also based on OECD and ICN recommendations (Practical procedures for planning Dawn Raid. European Competition Network). The question of the designation of the body entitled to control may in some cases also be a question of conflict of jurisdiction between regulatory authorities. This occurs in cases where there is a similar inspection authorisation as from a competition authority and another regulatory authority. In the case of the Czech Republic, these are areas of energy regulation where the Energy Regulatory Office has the right to carry out an inspection in a similar procedural regime and the scope of the inspection authority in cases that affect competition. Such a risk of a conflict of public authority can be avoided by regulatory authorities, within the framework of their powers, coordinating their activities while maintaining and respecting all legal safeguards for the exercise of their administrative activities.

249