Dawn Raid Analysis Quarterly: 2024 Q2

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.

Q2 2024 at a glance

In Q2 2024, European competition regulators carried out a total of 17 dawn raids, two more than in the same period last year.

The most active regulator in Q2 2024 was the Romanian competition authority that conducted four dawn raids during the three months. The most targeted sectors in Q2 were public utilities, construction, ICT and automotive sectors (two dawn raids per sector).

Noteworthy for Q2:

• In June 2024, the European Commission raided a consultancy firm in two EU Member States on the grounds that it may have facilitated or instigated suspected price coordination amongst tyre manufacturers. The raid was an extension of an investigation that was started in January 2024 when the European Commission raided a number of tyre manufacturers in several EU Member States. Warning: The EC is prepared to dawn raid third parties that are suspected of facilitating cartels, including consultancy firms.
• In June 2024, the European Commission fined International Flavors & Fragrances (IFF) EUR 15.9 million for obstruction of a dawn raid. The European Commission found that a senior employee had intentionally deleted during a dawn raid Whatsapp messages exchanged with a competitor containing business-related information. The European Commission detected the deletion itself after the employee's mobile phone was submitted for review. After the detection, the company proactively cooperated with the European Commission during and after the raid by helping the European Commission to recover the deleted data. The European Commission reduced the final amount of fine to acknowledge the cooperation. The fine illustrates the importance of training staff that mobile phones can be the target of a raid, and that data on them, including Whatsapp messages, should not be deleted during a dawn raid.
• In April 2024, the European Commission carried out its first-ever dawn raid under the EU Foreign Subsidy Regulation (FSR). It inspected premises of a company active in the production and sale of security equipment in the EU. According to a short press statement, the European Commission stated that it has indications that the inspected company may have received foreign subsidies that could distort the internal market pursuant to the FSR. The company is currently challenging the legality of the dawn raids before the Court of Justice of the European Union.

We provide more statistics below on the number of raids and the sectors impacted, including a country-by-country list, available through our Interactive Dawn Raid map.

Key Q2 2024 legal developments

Below is a selection of key developments in Q2 2024:

• Jurisdictional limits on domestic courts when challenging the dawn raid conduct of a foreign authority
• AG Medina indicates that an authorization by the Portuguese Public Prosecutor can be sufficient to seize and search emails during a dawn raid
• Czech Supreme Administrative Court prevents the Czech Competition Authority from using dawn raids for fishing expeditions

Jurisdictional limits on domestic courts when challenging the dawn raid conduct of a foreign authority

In May 2024, the Irish High Court considered whether it had jurisdiction in proceedings concerning Ryanair's challenge to a 'dawn raid ' on its Dublin headquarters by officials from the Italian competition authority (AGCM). The judgment provides a practical examination of the Recast Brussels Regulation (Regulation) in the context of a challenge against the dawn raid conduct of a foreign antitrust authority. The Regulation governs the assignment of jurisdiction in civil and commercial disputes.

Background

Ryanair is currently the subject of an investigation by the AGCM for an alleged abuse of a dominant position. In January 2024, the AGCM requested the Irish Competition and Consumer Protection Commission's (CCPC) assistance with this investigation. As a result, the CCPC obtained a warrant from the Dublin District Court in March 2024. Later that same day, officers appointed by the CCPC, six of whom were current AGCM staff, conducted a 'dawn raid' at Ryanair's headquarters. The AGCM officials subsequently returned to Italy with the seized material.

In late March, Ryanair issued High Court proceedings seeking to quash the search warrant. Ryanair also asked the Court to deem some of the seized materials 'legally privileged', while also seeking to prevent the CCPC and AGCM from reviewing the seized material. In response, the AGCM argued that the proceedings against it should be set aside on the basis that the Irish Courts lacked authority to hear the case.

Exercise of Public Law Powers

The Court noted that if the proceedings commenced by Ryanair are civil and commercial matters, it has jurisdiction to hear the challenge under the Regulation. However, its jurisdiction does not extend to proceedings concerning revenue, customs, administrative matters, or regarding an EU Member State's liability for acts and omissions in exercising its authority.

The applicable test, thus, has two parts:

• Was the AGCM exercising public law powers?
• And if so, was it doing so only in a way available to any private individual?

The Court found that, under the Regulation, if the answers are 'yes' and 'no', the case falls outside its jurisdiction. The AGCM's actions were regarded as public law powers of investigation which were not available to private persons. Therefore, the case falls outside the jurisdiction of the Courts.

The Court emphasised the Regulation does not deny Ryanair a remedy, but rather any such remedy should be sought in the Italian courts.

Broader Consequences

This judgment provides a boost for the possibility of co-operation between national authorities regarding the enforcement of EU and/or national competition laws. It shows the potential effectiveness of the relevant provisions of Regulation 1/2003 and the ECN+ Directive in allowing for the co-operation between national competition authorities in the EU regarding purely domestic matters.

Provided by Cormac Little SC, Partner, William Fry LLP (Dublin)

AG Medina indicates that an authorization by the Portuguese Public Prosecutor can be sufficient to seize and search emails during a dawn raid

On 20 June 2024, Advocate General (AG) Medina delivered her Opinion in IMI/Synlabhealth/SIBS¹ concerning three requests for a preliminary ruling from the Portuguese Competition Tribunal (Tribunal) regarding the interpretation of Article 7 of the Charter of Fundamental Rights of the European Union (Charter). The central question was whether the Portuguese Competition Authority (PCA) can, during a dawn raid, search and seize internal emails between an employee and a company on an authorisation of a Public Prosecutor as opposed to a warrant from a judge. According to the AG, EU law does not prevent Member States from requiring a national competition authority to obtain a judicial warrant to seize emails. However, the requirement should not undermine the effective application of EU competition law.

As reported in the Q3 2023 DRAQ, these requests follow a ruling by the Portuguese Constitutional Court from March 2023, declaring that e-mails are protected by the right to privacy of correspondence and that the search and seizure of e-mails in a pending competition investigation should always be authorised by a warrant issued by a judge and not merely by a Public Prosecutor. In July 2023, a second ruling by the Portuguese Constitutional Court confirmed this understanding.

AG Medina concluded:

• The fact that an email may be classified as "professional" does not deprive it of the protection which Article 7 of the Charter affords to communications. Such a protection relates to both the content of the email and the personal data relating to the traffic generated.
• A national competition authority can search and seize emails provided those emails are relevant to the subject matter of the inspection.
• There needs to be a balance between privacy rights afforded by the Charter and the importance of protecting public interest' goals. Safeguarding effective competition on a market justifies the interference with privacy rights.
• Member States are at liberty to apply a higher level of national protection for privacy rights than the one provided by EU law, i.e., by rendering it necessary for a national competition authority to obtain a prior judicial authorisation to search and seize emails during a dawn raid. However, the AG cautioned that the higher bar cannot undermine the effective application of EU competition law.

The AG proposes that the Tribunal considers two complementary paths:

• The Tribunal should make use of all the possibilities offered by national law, including, where appropriate, the possibility of an ex post judicial review of the measures in question to counterbalance the lack of prior judicial authorisation.
• In order to give full effect to Articles 101 and 102 TFEU, the referring court should also consider disapplying a national rule that would allow the interpretation adopted by the Portuguese Constitutional Court in its 2023 rulings to have a retroactive effect, the consequence of which would be to 'create a systemic risk of impunity for such offences'.

The final ruling by the Court of Justice of the European Union is expected to have an impact on limits with respect to an NCA's investigative powers and the conditions under which inspections may be deemed lawful both under national and EU law. The impact on Portuguese case-law and enforcement is substantial, potentially leading to the annulment of several PCA's decisions adopted in the last ten years, including antitrust fines imposed on companies.

Provided by Nuno Calaim Lourenço, Partner, SRS Legal (Lisbon)

Czech Supreme Administrative Court prevents the Czech Competition Authority from using dawn raids for fishing expeditions

In June 2023, the CCA carried out a dawn raid at the business premises of electronics retailer company HP Tronic Zlín, based on a mandate issued by the CCA's Chairman. The alleged anticompetitive conduct under the investigation consisted of the conclusion and implementation of prohibited resale price maintenance agreements with its customers.

The company successfully secured an order from the Regional Court in Brno declaring that the dawn raid was an unlawful interference on the basis of the CCA acting beyond the scope of the investigation. In November 2023, the Regional Court confirmed that the CCA went beyond the scope of its mandate which was limited to investigating anti-competitive conduct "from at least 2020 and in relation to the Bosch, Jata a Sogo electrical appliances". The CCA challenged this judgement before the Czech Supreme Administrative Court. In March 2024, the Supreme Administrative Court affirmed the conclusions of the Regional Court. In particular, the Supreme Court confirmed that during the dawn raid the CCA secured communication from before 2020 that was unrelated to the subject matter of the investigation. The Supreme Administrative Court highlighted that despite objections from HP Tronic Zlín, the dawn raid authorization did not justify the CCA's course of action.

The judgement of the Supreme Administrative Court comes in the context of a proposal by the CCA to extend the CCA's dawn raid powers. Therefore, and perhaps unsurprisingly, the CCA's Chairman criticized the judgment. In his keynote speech in May 2024 that the CCA will be forced to respond to this ruling. He stated that he finds it "incomprehensible" that cases in which the CCA finds as part of a dawn raid a large amount of evidence of anti-competitive conduct unrelated to the original subject-matter of the investigation, risks the court treating this as an unlawful interference on the part of the CCA. He criticized the courts for trying to impose a criminal law standard on the CCA, thereby thwarting the will of the Czech legislator.

The judgment is good news for businesses. Despite the CCA's criticism, it is expected that the authority will be more cautious in observing the boundaries of its mandated powers in any future dawn raids.

Interactive Dawn Raid map

Hover over the highlighted countries to get a closer look at the enforcement activity of the respective National Competition Authorities since 2021.

EU Austria 2024 One dawn raid Sectors: Vehicle repair 2023 One dawn raid  Sector: Refrigeration and freezing equipment  2022 Three dawn raids Sectors: Wood-pellets; waste management 2021 One dawn raid Sectors: Waste management. Belgium 2024 One dawn raid Sector: bus and coach passenger transport 2023 One dawn raid Sector: IT manufacturers 2022 Two dawn raids Sectors: Bovine meat; Press publisher and distribution 2021 None reported Bulgaria 2024 One dawn raid Sectors: traders of construction machinery and equipments 2023 One dawn raid Sector: Food and beverage 2022 One dawn raid Sectors: Toners and other printing consumables. 2021 None reported Croatia 2024 One dawn raid Sectors: Management, constructions, and maintenance of state roads 2023 One dawn raid Sectors: Wheat 2022 None reported 2021 None reported Cyprus 2023 None reported 2022 One dawn raid Sectors: Bricks 2021 None reported Czech Republic Denmark 2023 None reported 2022 None reported 2021 One dawn raid Sector: Auto repair services Estonia No dawn raids for the period 2021 – 2023 Finland 2024 One dawn raid Sector: Elder care homes 2023 None reported 2022 None reported 2021 None reported France 2024 Three dawn raids Sectors: Medical biology; energy cable distribution; manufacture and distribution of explosives for civil uses 2023 Four dawn raids Sector: Rail transport; graphic cards; production and marketing of food and non-food product sectors; production and marketing of food and non-food products 2022 Four dawn raids Sectors: Cow's milk; leather goods; agricultural supplies; cash register services for newsagents and tobacconists 2021 Two dawn raids Sectors: Food retail; pharmacy data collection Germany 2024 Two dawn raids Sectors: tyre retail; N/A 2023 11 dawn raids 2022 12 dawn raids Sectors: Power-cable manufacturer As stated in the Bundeskartellamt (BKa) annual report of 2022, in 2022 the BKa carried out a total of 12 dawn raids and provided official assistance for another six 2021 Two dawn raids As stated in the BKa annual report of 2021, in 2021 the BKa conducted two dawn raids Greece 2024 Five dawn raids Sectors: IT and technology sector and related services; organisation of educational trips for public and private schools; smart water meter systems; ferry services; waste management 2023 Seven dawn raids Sectors: Pharmaceuticals; alcoholic beverages; food processing; poultry; electricity grid; baby products; medical equipment 2022 12 dawn raids Sectors: Children's toys; aluminium; PVC and iron processing; import and distribution of white goods; transport; electricity; catering; medical products; 2 x construction; eyewear; cosmetics and personal care; breast pumps and accessories 2021 13 dawn raids Sectors: Sunflower; cotton and maize seeds; cadastral survey services; production and supply of pharmaceutical products; refining; wholesale and retail trade of petrol and diesel; 2x supply and retail trade of supermarket products; school bags; kids’ lunch bags and pencil cases; IT systems; catering services; public tenders for natural gas works; import; wholesale and retail markets of power-driven hard tools and garden tools; wholesale and retail markets of telecommunications and teleconferencing equipment; lighting systems Hungary 2023 Three dawn raids Sectors: Food and beverages; soft drinks;online accommodation booking 2022 None reported 2021 Two dawn raids Sectors: Timber; gravel market Ireland 2024 Two dawn raids Sector: Airlines; home alarms 2023 One dawn raid Sector: Publicly funded transport 2022 None reported 2021 None reported Italy 2024 Three dawn raids Sector: Online travel agencies; potato chips; vehicle repair 2023 Seven dawn raids Sectors: Oil; electric recharging stations; organization of sporting competitions; automotive fuels; anti-lock breaking systems; organization of competitive motor sports events; wine glass bottles 2022 Two dawn raids Sectors: Tolled motorways; catering services for penitential institutions 2021 None reported Latvia No dawn raids for the period 2021 – 2023 Lithuania No dawn raids for the period 2021 – 2023 Luxembourg 2024 One dawn raid Sectors: Pharmaceutical and parapharmaceutical 2023 None reported 2022 None reported 2021 None reported Netherlands 2023 None reported 2022 None reported 2021 One dawn raid  Sectors: Food processing sector Norway 2023 None reported 2022 Two dawn raids Sectors: Finance; construction 2021 Two dawn raids  Sectors: Pharmaceuticals; relocation services Poland 2024 Four dawn raids Sectors: Consumer electronics; digital distribution platform for video games; technologies related to electric and robotic systems; flooring panels 2023 Four dawn raids Sector: Agricultural machinery; processing and wholesale trade of raspberries; household applicances, grain storage 2022 Three dawn raids Sectors: Gas meters; grain trade and shipments; coffee machines 2021 Five dawn raids Sectors: Monitoring equipment; cleaning devices; hospital IT systems; KIA car dealerships; pork wholesale Portugal 2024 Three dawn raids Sectors: Unknown 2023 Three dawn raids Sectors: supermarket retailing; condominium administration 2022 Six dawn raids Sectors: Wood-chip; wholesale of pharmaceutical goods; IT consulting; health & pharmaceutical; pharmaceutical and para pharmaceutical 2021 Two dawn raids Sectors: Procurement of military equipment; commercialised subscription databases with business information Romania 2024 Five dawn raids Sectors: Archival services for pensions; electricity meter reading services; ICT equipment; medical oxygen; dietary supplements 2023 Four dawn raids Sector: Console gaming; Sunflower oil, butter and sugar; voucher services related to employee benefits; banking 2022 One dawn raid Sectors: Motor vehicles 2021 12 dawn raids Sectors: Telecommunications; direct oral anticoagulants; paints and decorative coatings; book distribution; archiving of documents; tenders for an electronic services project; poultry; electricity; labour protection equipment; retail of electronic products; technical site permit services; street signage   Slovakia 2024 One dawn raid Sector: Photovoltaics 2023 Three dawn raid Sector: Healthcare waste management; laboratory medical diagnostics; medicines and medical devices 2022 Four dawn raids Sectors: IT; forestry; cables; sale and repair of robotised workplaces 2021 None reported Slovenia 2024 One dawn raid Sectors: IT suppliers 2023 None reported 2022 None reported 2021 One dawn raid Sectors: Driver training   Spain 2024 Three dawn raids Sector: Provision of consulting and technical assistance services; leasing of facilities intended for the activity of FBOs at airports; agriculture machinery 2023 Eight dawn raids Sector: Travel agencies; haircare products; low-voltage electricity networks and electricity trading; agricultural machinery; rail transport; pharmaceutical digital logistics tool; electricity and gas; drugs and medications 2022 Four dawn raids Sectors: Energy; food; security and surveillances services 2021 Two dawn raids Sectors: Plastic and metal recycling; database marketing   Sweden 2023 None reported 2022 One dawn raid Sectors: Bread 2021 Four dawn raids Sectors: Waste management and treatment; plumbing products and installations; bread; PCR tests   Switzerland 2024 One dawn raid Sector: Civil engineering and construction 2023 Three dawn raids Sector: Fragrances; office equipment; steel products 2022 Two dawn raids Sectors: Dermatological medication; road maintenance 2021 None reported United Kingdom 2023 One dawn raid Sector: Fragrances 2022 Three dawn raids Sector: End-of-life vehicle manufacturing; immigration facilities; sports TV broadcasting  2021 None reported EU 2024 Three dawn raids, one FSR dawn raid Sector: Tyre manufacturers; consultancy for tyre manufacturers; security equipment; financial derivatives 2023 Seven dawn raids Sectors: Energy drinks; fragrances; fashion; synthetic turf manufacturing; medical devices for cardio-vascular applications; Chemical additives for cement and chemical admixtures for concrete and mortar; online ordering and delivery of food, groceries and other consumer goods 2022 Four dawn raids Sectors: Fashion; online food delivery; water infrastructure; ELV vehicles 2021 Four dawn raids Sectors: Defence; animal health; wood pulp; manufacturing and distribution of garments Back to Map

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 in the EU plus Switzerland and the UK, 2018 – 2024 (Q2) (PDF)

View full image: Dawn raid leader board (PDF)

View full image: Number of dawn raids per year and during 2018 – 2024 (Q2) in the EU plus Switzerland and the UK (PDF)

View full image: Dawn raid tracker by sector: EU plus Switzerland and the UK, 2018 – 2024 (Q2) (PDF)

View full image: Most recent sector trends: Dawn raids by sector in the EU plus Switzerland and the UK in 2023 and 2024 (Q2) (PD

_{As of 27 June 2024
Source: LexisPSL and publicly available data}

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