Dawn Raid (Survival) Tips
Compliance has become quite a buzzword in recent years. GDPR, money laundering, sanctions … and competition law, require that an important part of the employees are trained and aware of the applicable rules and know how to react in the event of a breach or a potential investigation.
It is important that the employees receive clear instructions on how to deal in specific situations and to be able to discuss their concerns in regular compliance trainings, tailored to their role in the company. A robust compliance programme can also be a mitigating factor in the event of a compliance law breach.
Broad investigative powers of the Slovenian Competition Protection Agency
An investigation is usually a stressful event for employees as the investigative powers of the Slovenian Competition Protection Agency (“Agency”) are broad and its employees may inter alia:
- enter all premises, land and means of transport owned by the company under investigation;
- inspect business books and other documentation related to the company’s operations, regardless of the type of medium on which it is recorded or stored, and have the right to access any information accessible to the company that is the subject of the inspection;
- take away or obtain, regardless of the form, copies, forensic copies or extracts from business books and other documentation in any form using photocopiers and computer equipment of the company or the Agency.
The user of the electronic device under inspection must grant the Agency access to the device, provide encryption keys or passwords and provide explanations about the use of the device.
The Agency may also request from any representative or person employed by the company an oral or written explanation of facts or documents relating to the subject or purpose of the investigation.
High fines for obstruction of investigation
Companies have the duty to cooperate with the Agency’s officials in accordance with the Slovenian Competition Protection Act and respective case law, and to make it possible for the investigation to be carried out. In practice, this means that, among other things, they must explain to the officials in sufficient detail where certain documentation is located or which company employee was responsible for certain actions.
The Agency may impose a fine on the company in the amount of one percent of the company’s annual turnover in the previous financial year, if the company (i) submits incomplete business books or other business documentation during the investigation, (ii) obstructs authorized persons in the conduct of the investigation, and/or (iii) removes or otherwise damages the seals with which Agency officials sealed individual premises or business documentation that are part of the investigation, but have not yet been inspected.
What to do before an investigation takes place?
(a) COMPLIANCE PROGRAMME
An effective compliance programme enables the employees to become familiar with the basic competition law rules and reduces the possibility of competition law infringements and, consequently, the possibility of an investigation by the Agency.
Employee training includes concrete instructions and examples of competition law restrictions, which need to be considered when (a) interacting with competitors, (b) concluding purchasing and/or distribution agreements, as well as regarding (c) specific responsibilities of companies with a market share of more than 40%.
(b) INVESTIGATION PROTOCOL
It is recommended that companies have an investigation protocol set up, which addresses who shall (i) welcome an investigative team of the Agency, (ii) review the investigation decision and interact with the officials, (iii) organize how the investigation is monitored and how employees are to interact with officials, etc.
(c) DAWN RAID TRAINING
It is recommended that the employees who will be in contact with the Agency’s officials and whose electronic devices and documents could be subject to investigation receive training and are familiarized with their rights and duties in detail.
We have prepared an off-the-shelf training for you and your employees, and we are also happy to prepare tailor-made trainings that focus on competition law issues that your employees face in their day-to-day business activities.