On 25 May 2018, the Serbian Commission for the Protection of Competition (the “Commission“) has published a dawn raid guidance (“Guidance“) on its investigative powers, rights and duties of the parties during dawn raids and sanctions for obstructing dawn raids.
Powers of investigation
The Guidance clarifies the scope of the Commission’s powers regarding search of business and other documents, by specifying that documents that can be searched include electronic documents and that the search can be performed not only as keyword search, but also by using forensic equipment.
Rights and duties of the parties
The Guidance instructs the parties that they have the following rights during dawn raid:
- to ask from the Commission`s officials to prove their identity;
- to be informed of the subject-matter of the proceedings and reasons for the dawn raid;
- to request copies of the decision on initiation of investigation and dawn raid warrant;
- to request a list of temporarily seized documents;
- to mark client-attorney communication as privileged and separate it from other files;
- to be present at dawn raid, communicate with the Commission and provide all necessary explanations relating to the documentation which is dawn raided.
The Guidance acknowledges the party’s right to have its attorney present during dawn raid, however, the Commission is not required to delay the commencement of the inspection until the party’s external counsel arrives. The Guidance merely states that the Commission’s officials will update the party’s counsel on the actions undertaken before his arrival.
Parties are obliged to alllow the Commission’s officials access to computers, including server, and electronic devices in the business premises, which includes the obligation to give the so called ‘administrator access rights’-support’. The parties also have the obligation to actively support the Commission during dawn raid, including answering questions pertaining to the documents, temporarily disconnecting computers from the network or refraining from using mobile phones and other electronic communications devices.
Sanctions for obstruction
In case of recalcitrance, the Commission is authorized to:
- impose periodic procedural penalties;
- file a criminal complaint;
- request police assistance.
Recalcitrance is treatead as an aggravating circumstance for the purpose of assessing fines.