Dawn Raid Analysis Quarterly: 2023 Q1
White & Case Dawn Raid Analysis Quarterly (DRAQ) is an information resource on surprise on-the-spot inspections (dawn raids) across Europe. Here, we guide you through the latest updates and legal developments for 2023 Q1.
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The White & Case Dawn Raid Analysis Quarterly (DRAQ) is an information and discussion resource regarding surprise on-the-spot inspections by antitrust authorities (dawn raids) across Europe. DRAQ provides updates on recent case law, enforcement activity and trends.
2018 to Q1 2023: At a glance
From approximately 60 dawn raids per year by European competition regulators in 2018 – 2019, COVID-19 led to a drop in dawn raid activities in 2020 and the first half of 2021. In the second half of 2021, there was an impressive rebound of dawn raids, which brought the figures back to pre-pandemic levels. While the number in 2022 was comparatively low, the number of raids in Q1 2023 has been steady, with an unusual double act from the EC within a short period of three weeks across February and March 2023 (fragrances and energy drinks).
Over the course of the past five years, the sectors most hit have been—food and beverages, consumer goods and information and communication technology (ICT). A trend that, in light of the EC's recent raid (consumer goods), does not appear to be slowing down. Nevertheless, it is worth noting that dawn raids in the energy sector are on the rise (four dawn raids in the past four months), a not entirely surprising development, in particular, given current geopolitical turmoil.
Unusually, one of the two raids conducted by the Commission (fragrances) has been carried out ex-officio–reflecting a potential shift to a more pro-active approach amidst a reported drop in leniency applications.Also unusual was the fact that the raids were coordinated with the CMA, the Swiss WEKO and the US authorities—something that had not been seen in a while.
We provide more statistics below on the number of raids, the sectors impacted, including a country-by-country list, available through our Interactive Dawn Raid map.
Key Q1 2023 legal developments
EU Court of Justice annuls the inspection decisions of the European Commission in the French supermarkets case
In its judgments of March 9, 2023 the EU Court of Justice (CJEU) ruled that the European Commission (EC) had failed to fulfil its obligation to properly record the interviews that it conducted with suppliers when collecting information relating to its investigation. In the absence of valid evidence justifying the inspection, the CJEU ruled that the inspections were illegal, and annulled the EC's decision in its entirety.
Aligning its case law to that of the European Court of Human Rights (ECHR), the CJEU for the first time recognised that a company subject to a dawn raid should have an immediate right of appeal against any measure taken by the EC during a raid that substantially affects its interests.
Key takeaways
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The EC has a duty to record interviews carried out in the context of an investigation—even if the interviews take place at a very early stage (in this case before the inspections) when the investigation has not yet been formally opened. The interviewees must also be in a position to confirm the contents of the interviews. Alternatively, the information derived from those interviews is inadmissible.
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Companies targeted by an inspection should have the right to appeal the measures taken during a raid that substantially affects their interests, without having to wait for the EC's final decision. This alignment of EU law with the ECHR is a welcome improvement in due process rights for targeted companies.
White & Case represented the appellant in one of three cases decided by the Court of Justice. Read our press release here.
The CJEU clarifies that all communications from EU external counsel to their clients are covered by legal professional privilege
The CJEU clarified the scope of the protection of legal professional privilege (LPP) in the EU, by finding that LPP is based not only on the right to a fair trial but also on the right to privacy. The CJEU recognised that LPP covers all communications between EEA-qualified external lawyers and their clients, and is not limited to advice given for the purposes of the client's rights of defence. In other words, it is also applicable to legal advice in general (e.g., compliance). This, again, is a welcome alignment with the case law of the ECHR.
Key takeaways
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While EC inspectors have extensive investigative powers during dawn raids, they are not allowed to read, copy or seize documents that are covered by LPP. This judgment ensures that all legal advice (not only that given in relation to the rights of defence) —is subject to LPP.
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Caution! Legal advice received from an in-house lawyer or from a non-EEA qualified lawyer is not covered by LPP.
Spanish Supreme Court annuls dawn raid carried out without prior judicial authorization
In its judgment (Case n. 253/2023) of February 28, 2023 the Spanish Supreme Court ruled that the 2017 dawn raids carried out at Altadis's premises by the Spanish Competition Authority were unlawful, as it had not obtained prior judicial authorisation for the inspection. At the beginning of the inspection, the inspectors were asked whether they had a judicial authorisation to conduct the dawn raids, but they concealed this information by providing a confusing reply, saying that "there is no order refusing entry". When Altadis found out that the inspectors had no actual authorisation, it challenged the validity of the inspection on the basis that the consent it had given was defective. The Supreme Court therefore upheld the Audiencia Nacional judgment of May 2021, which stated that any "consent obtained without having been provided with relevant information for taking a position on the consent being sought is void". Ultimately, the Supreme Court sided with Altadis, confirming that Altadis had not been provided with relevant information when it consented to the raid.
A look at the statistics
The information below has been sourced from LexisPSL, and is based on dawn raids that have been publicly announced by competition authorities. The LexisPSL information was supplemented from public sources in jurisdictions where further information was available. Since not all competition authorities announce every dawn raid, the data below likely underestimate the number of raids. The sector charts reflect dawn raids in which the sectors were identified by the competent authorities. In some jurisdictions (e.g., Germany), the authority publishes the number of raids without identifying the sector. As a result, the statistics in the charts below may underestimate the actual number of dawn raids by sector and country.
View full image: Number of dawn raids per year, 2018 – 2023 ytd (PDF)
View full image: Number of dawn raids by jurisdiction, 2018 – 2023 ytd (PDF)
View full image: Number of dawn raids per year, 2018 – 2023 ytd (PDF)
Dawn raids in the EEA and the UK, 2018 – 2023
View full image: Dawn Raid tracker by sector, 2018 – 2023 ytd (PDF)
View full image: Most recent sector trends: Dawn raids by sector in 2022 and Q1 2023 (PDF)
Interactive Dawn Raid map
Hover over the highlighted countries to get a closer look at the enforcement activity of the respective National Competition Authorities.
Austria2023
2022
2021
Belgium2023
2022
2021
Bulgaria2023
2022
2021
Cyprus2023
2022
2021
Czech RepublicEstonia
France2023
2022
2021
Germany2023
2022
2021
Greece2023
2022
2021
Hungary2023
2022
2021
Italy2023
2022
2021
Latvia
Lithuania
Netherlands2023
2022
2021
Norway2023
2022
2021
Poland2023
2022
2021
Portugal2023
2022
2021
Romania2023
2022
2021
Slovakia2023
2022
2021
Slovenia2023
2022
2021
Spain2023
2022
2021
Sweden2023
2022
2021
Switzerland2023
2022
2021
United Kingdom2023
2022
2021
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Source: LexisPSL and publicly available data
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