Our European society is more connected than ever. The creation of hundreds or thousands of files per day, the storage of huge amounts of data and the democratization of the cloud impose an obligation on companies to manage this data, often containing very sensitive information related to them.
The enforcement of European competition law must nowadays take account of the challenges that have arisen in this new digital economy, especially in the use by the Commission of its investigative powers. When the institution suspects a serious infringement of competition law and a possible destruction of evidence, it can issue a decision that will allow the conduct of “dawn raids”, therefore obliging the undertakings concerned to comply and cooperate.
Article 20(2) of Regulation 1/2003 provides that during inspections, inspectors can examine books and other records related to the business, and are therefore entitled to search through laptops and other devices, having unrestricted access to them. Business records include all documents, irrespective of their format, i.e. emails can be seized as well as digital files, USB drives…1 Moreover, Regulation 1/2003 allows the Commission “to take or obtain in any form copies of or extracts” from these records. EU officials are granted a wide margin of discretion because they can copy digital data and use innovative tools to recover deleted files.
The challenge of determining to what extent digital data can be seized and collected during dawn raids is high. As the concentration of data through different digital platforms grows, the Commission tries to extend its access to capture all useful data for evidence gathering purposes. Assisted by its forensic team, the collection of digital data goes way further than laptops and services inside the company, but deviates to instant messages, clouds and other digital devices provided that they are used for business activities.
The incredibly intrusive nature of dawn raids suggests that inspections covering digital data need to comply with procedural safeguards, especially those enshrined in Article 8 ECHR (respect for private life and correspondence). The Vinci Construction judgment rendered by the ECtHR in 20152 was an opportunity for the Court to reaffirm the conditions of lawfulness of a dawn raid : it is prescribed by law, it pursues a legitimate aim and is necessary and proportionate. However, can we consider that the extension of the inspection to all data contained in company chats, private messaging conversations and private company devices is proportionate and complies with fundamental rights? It seems, in relation to this case law, that a violation would be likely considered since judicial protection against excessive investigations has been reinforced.
Should the inspection be proportionate, any action intended by employees to delete or cover relevant data would be fined for obstruction to the investigation. This question is relevant and important because the Commission’s request to access unusual supports became part of its wide investigative powers. The nuance is that private conversations cannot be monitored by employers but, if the Commission observes an incomplete transparency in seized documents and data, the undertaking will be held liable.
That is precisely what happened when, during an inspection at the premises of International Flavors & Fragrances in March 2023, the Commission asked to review the mobile phones of certain employees, and observed that one of them intentionally deleted WhatsApp messages (instant messages) exchanged with a competitor that contained commercially sensitive information. The company was fined an amount of €15.9 million, despite having helped to recover the deleted data. This event was a turning point in the history of European competition law as it was the first time that an undertaking was fined for having deleted instant messages on a mobile phone3.
What to expect in the near future regarding the conduct of dawn raids involving the access and treatment of digital data? We can assume that the Commission and the national competition authorities will continue to extend the means to get access to digital data, in light of the wide powers enshrined in Regulation 1/2003. Given that leniency applications have decreased over the years and the amount of dawn raids remained stable, having access to more data while being protected from allegations of violation of fundamental rights will allow a more effective competition law enforcement.
Nevertheless, one major issue that competition law enforcers need to consider lies in the access to the cloud. Due to the new ways of working adopted by undertakings with remote work, business data is often contained in the cloud. Employees can easily access it at home via different working applications and devices. It is however a very technical task to select the relevant information, and the Commission may require a large cooperation by inspected companies. This in turn increases the risks of obstruction to the inspection…
That is why, in order to reduce the risks of obstruction due to the collection of extensive digital data, all employees must be aware of the scope of inspections, which includes instant messages to competitors. Furthermore, working from home during the day of the inspection does not mean that they are excluded from the obligation to give their personal device containing business information (meaning not deleting anything). The Commission, in its revision of Regulation 1/2003, has considered introducing a “freezing order” that would impose temporary restrictions on the deletion or alteration of data4. This would provide more clearance of inspected undertakings.
- L. Ortiz Blanco, European Union Competition Procedure, Chapter 8 on Inspections. ↩︎
- Judgment of 2 April 2015, Vinci Construction et GTM Génie civil et services c. France, ECLI:CE:ECHR:2015:0402JUD006362910. ↩︎
- Francesca Miotto, “European Union: dawn raids prove critical for authorities to manage dynamic markets and emerging tech”, Global Competition Review, 25 April 2025.
https://globalcompetitionreview.com/market-review/market-review-cartels/2025/article/european-union-dawn-raids-prove-critical-authorities-manage-dynamic-markets-and-emerging-tech. ↩︎ - Liliane Gam, Elisha Kemp, “Hold the phone: antitrust authorities looking closely at instant messages in dawn raids”, Linklaters, 12 July 2024.
https://www.linklaters.com/en-us/insights/blogs/linkingcompetition/2024/july/hold-the-phone-antitrust-authorities-looking-closely-at-instant-messages-in-dawn-raids. ↩︎
Co(E)mpetition Procedure 