EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
part of its inspection, clients are strongly advised to ensure that the seal is not broken, either inten- tionally or by accident, as this can result in a substantial fine. More generally, based on the case law of the EU courts, the Commission considers that it is incumbent on undertakings, at least from the time they have received a first request for information from the Commission, to act with “greater diligence” and to take “all appropriate measures” in order to preserve relevant evi - dence. While the Commission does not have the power to impose sanctions in this respect, once a company receives a request for information, it is generally advisable to take the steps neces - sary to preserve all potentially relevant evidence (eg, through suspending any regular document retention/destruction policy that the company operates). 2.4 Role of Counsel Role of Counsel Issues relating to individual legal representation are potentially not as common in the EU as in other jurisdictions as there is no personal liability for cartel conduct under EU law. Although the right to legal representation is not specifically stipulated in the legislative frame - work, in practice the European Commission permits an interviewee to be accompanied by a person of their choice, including external outside counsel. To the extent that a company’s legal counsel attends and assists during an interview of an employee, it is permissible for counsel to recommend that the employee only provide answers on matters directly related to the sub - ject matter of the investigation and only within the employee’s direct knowledge.
However, in interviews conducted in the course of unannounced inspections, the company’s employees may potentially subject the company to a risk of fines if they decline to respond to, or fail to provide complete and correct answers to, any requests for explanations of facts or docu - ments relating to the subject matter and purpose of the inspection. In such circumstances, the Commission is not prohibited from questioning the employee in the absence of a lawyer. Separate Counsel for Individuals There is no personal liability for cartel conduct under EU law, so it is not typically required for an individual to obtain separate counsel. However, given that certain jurisdictions within the EU (eg, Ireland) provide for separate individual criminal sanctions for competition law violations, it may be necessary for individuals suspected and/or closely involved in cartel conduct to instruct legal counsel separate from the counsel advis - ing the company. Initial Steps to be Taken by Defence Counsel At the outset, clients should put in place a pre- arranged policy that is ready to be implemented in the event the European Commission (or a national competition authority) conducts an on- site surprise inspection. For example, reception staff should be provided with a list of contact details so as to allow them to notify internal sen- ior management, IT staff, in-house counsel and external counsel immediately in the event of an investigation. On arrival, officials should be asked to wait until the company’s counsel are present (although the officials may not wish to comply). The company and its counsel should request a copy of the Commission officials’ mandate and review it, paying particular attention to whether its scope is sufficiently defined as to subject matter and
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