The Belgian Competition Authority (“BCA”) is empowered to carry out dawn raids while investigating alleged breaches of competition law. Since 2011, the BCA during a dawn raid handed over guidelines on dawn raids to the raided undertaking. To bring these guidelines in line with the provisions of Book IV of the Economic Code (Wetboek economisch recht / Code du droit économique) which recently entered into force, the BCA adopted on 17 December 2013 new guidelines which have been codified and published in the Belgian Official Journal (Belgisch Staatsblad / Moniteur Belge).
Firstly, the guidelines point out that a dawn raid starts as soon as the undertaking concerned receives the decision issued by the competition prosecutor and the investigating magistrate. The undertaking will have to submit itself to the investigating measures, but has the right to be assisted by external counsel. However, the presence of external counsel is not legally required. The BCA is therefore not obliged to await its arrival in order to start its investigation.
Considering that information is increasingly stored electronically, the guidelines describe in detail the different methods which, depending on the specific circumstances, the BCA will use while investigating electronic data. Two different methods of investigation are described: the software based search and the manual search. Under both methodologies the documents will only be selected in the presence of representatives of the undertaking.
In the first case the BCA conducts its investigation through the use of specialized software and specific keywords which need to be sufficiently linked to the practices under investigation. The selected documents are then transferred and stored in reserved storage (such as an external hard drive). Data processing takes place without consulting the content of the documents. However, it is possible that, after the relevant documents have been gathered, they are immediately consulted while taking into account the “out of scope” or “LLP” character of the documents.
The other method consists of the BCA conducting its investigation manually. Once again the selected relevant electronic documents will be transferred to a reserved storage. However, the content of the documents will be analyzed immediately.
Special attention is given to the qualification of the documents/data. After the documents have been selected they must be categorized and classified in one of three different indexes depending on their qualification. The system aims at making a clear distinction between documents which are connected to the practice under investigation (“in scope”), the documents which according to the undertaking concerned fall outside the scope of the BCA’s investigation mandate (“out of scope”) and the documents that are protected by the legal professional privilege (“LPP-documents”). This differentiation is especially relevant in light of the judgment of the Brussels’s Court of Appeal (“CoA”) of 5 March 2013 (see April 2013 Newsletter). In that judgment the CoA confirmed that advice given by an in-house counsel to its employer as well as the related correspondence, such as advice or drafts, is protected by the legal professional privilege and therefore is confidential. Nevertheless, the documents will no longer be considered confidential once the employer shares the documents with someone outside of the company. It is also important to note that LPP can only be enjoyed if the in-house counsel is a member of the Belgian Institute for in-house counsel (Instituut voor Bedrijfsjuristen / Institut des juristes d'entreprise).
Finally, the guidelines determine that the undertakings concerned must be given at least 10 working days depending on the amount of documents and the complexity of the case, to review and justify the selection of the “out of scope” and “LPP” documents
