EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
sion may then open the sealed envelope or con - tainer and examine the contents at its premises in the presence of representatives of the under - taking concerned. Examined Materials The Commission is entitled to examine the books and other records related to the busi - ness, regardless of the medium on which they are stored. The Commission may take electronic or paper copies of these records and ask the company’s representatives or staff for explana - tions as to any facts or documents related to the investigation. Companies being inspected are obliged to assist the Commission in locating and giving access to relevant materials. In practice, this means that the Commission can access not only paper documents but also net - work servers, computers, external hard drives, cloud computing services, USB keys, CD-ROMs and DVDs, as well as employees’ personal devic - es used for professional purposes. The Commis - sion may choose to examine the IT environment and storage media by using built-in search tools (eg, by conducting a keyword search), but it may also use its own forensic IT tools. The European Commission is not empowered to seize original documents or data, though it can copy or take extracts of documents or data con - taining information that is directly or indirectly related to the subject matter and purpose of the investigation. The company is entitled to receive a copy of all the documents and data copied. Explanation of Documents/Interviews Under its power to conduct unannounced inspections, the European Commission may request any representative or member of staff of the undertaking on site at the company’s prem - ises to provide explanations of facts or docu -
ments relating to the subject matter and purpose of the inspection. An undertaking may be fined if it refuses to provide such explanations or pro - vides incorrect or misleading information. Under its power to take statements, the Com - mission may conduct interviews with any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of the investigation. In both cases, the Commission must inform the national competition authority of the EU mem - ber state in whose territory the interview is con - ducted. The national competition authority may request that its officials assist the Commission in conducting the interview. There is no limitation concerning where the Com - mission may or may not conduct interviews. As long as the interviewee agrees, interviews may be conducted at the Commission’s premises. Interviews may also be conducted by telephone or by electronic means. Due to the voluntary nature of interviews, com - pany employees can decline to be interviewed. 2.3 Spoliation of Evidence In the event of an inspection by the Commis - sion, it is of the utmost importance that no doc - uments or other evidence are destroyed. Any such destruction of evidence may be regarded as obstruction of the inspection and can lead to the imposition of significant fines. To prevent spoliation of evidence, during a phys - ical on-site investigation the European Commis - sion is empowered to seal any business prem - ises containing books or records that may be relevant to its investigation. Should the Commis - sion decide to seal any part of the premises as
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