Digital Evidence Gathering in Dawn Raids – A Risk for the Company's Rights of Defense and Fundamental Rights

Abstract

Searching for evidence in electronic data has now become an integral part of every dawn raid. It does not only allow the Commission to investigate cartel cases more effectively but also poses new challenges for companies under inspection as they have to find a delicate balance between their duty to cooperate and the exercise of their rights of defence.

The Commission’s revised Inspection Note describes in detail the digital evidence gathering powers of inspectors during on-site inspections. However, several questions concerning both the scope of these powers and the safeguards that are necessary to protect companies against any abuse are still unanswered.

The paper deals with the controversial issues, namely the territorial limitations of the Commission’s right to access electronic evidence, the legal limits of keyword searches resulting from the unlawfulness of fishing expeditions, the so-called “mirroring” and the sealed envelope procedure, the protection of privileged documents and the judicial review of implementing measures. The author suggests modifications to the Commission’s digital evidence gathering procedure in order to enhance the protection of the fundamental rights of companies and to ensure compliance of the procedure with Article 7 (respect for private and family life) and Article 47 (right to an effective remedy) of the EU Charter of Fundamental Rights.