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WarrantEXPLANATORY NOTE TO WARRANT UNDER SECTIONS 28 AND 29 OF THE COMPETITION ACT 1998 (THE ACT)This Explanatory Note is provided for information only. It is not a detailed note of the powers under the Act which are subject to interpretation by the courts.
Subject matter and powersOfficers of the Director General of Fair Trading (the Director) have been authorised under Warrant to enter and search the premises identified in the Warrant in connection with an investigation under the Act. The subject matter of this investigation is set out in paragraph 1 of the Warrant. The officers will not elaborate on this.
Paragraph 3 of the Warrant sets out the powers of the named officer1 and other investigating officers under section 28 of the Act for the purposes of the present investigation. On entering the premises, the named officer and other investigating officers will, as a matter of practice, produce evidence of their identity when producing the Warrant.
Unless the Court has ordered otherwise, the initial production of the Warrant and entry to premises must take place between 9.30 a.m. and 5.30 p.m. Monday to Friday and, once officers have entered premises under the authority of the Warrant, they may outside those times and whilst the Warrant remains in force, remain on the premises or re-enter the premises to continue executing the Warrant.
Access to legal adviceYou are advised to seek legal advice. If the named officer and other investigating officers consider it reasonable in the circumstances to do so and if they are satisfied that you are complying with, or will comply with, such conditions as they consider it appropriate to impose, the named officer and other investigating officers will grant a request to allow a reasonable time for your legal adviser to arrive at the premises before the investigation continues.
If you decide to seek legal advice you should do so promptly and this must not unduly delay or impede the investigation. Any delay must be kept to a strict minimum. If you have an in-house legal adviser on the premises, or if you have received prior notice of the intended entry, the named officer and other investigating officers will not wait for your external legal adviser to arrive.
Self-incriminationThe named officer and other investigating officers have powers, among other matters, to search and take copies of, or extracts from, documents covered by the Warrant, to require you to produce relevant computer information and to require you to provide an explanation of any such documents (which the Act defines as including information recorded in any form). However, if your undertaking is suspected of having committed an infringement of the Act, they cannot require you to provide answers or statements that might involve an admission on your part of the existence of that infringement.
Legally privileged communicationsThe powers under section 28 of the Act to search, take copies etc. (set out in paragraph 3(b) onwards in the Warrant) do not apply in respect of any privileged communication. This is defined in section 30 of the Act to mean a communication
which would be protected from disclosure in proceedings in the High Court on grounds of legal professional privilege.
For the purposes of section 30, a professional legal adviser includes both an external and an in-house qualified legal adviser.
If you consider that a document or information is privileged, you should provide the named officer or other investigating officer with material of such a nature as to demonstrate to his satisfaction that the document or information, or parts of it, for which privilege is claimed, fulfil the conditions for it being privileged. If you fail to do so, you should gather together the items for which privilege is claimed. These items will not be examined or copied unless you reach an agreement with the named officer that they may be examined or copied. If no agreement is reached on the day of the investigation, the named officer will request that you make a copy of the items and place this in a sealed envelope or package in his presence. The named officer will then discuss with you appropriate arrangements for the safe-keeping of these items pending resolution of the issue of privilege. For example, such arrangements may include a request that your legal adviser should give (or if no legal adviser is present, that you give), a written undertaking that the envelope or package will be retained safely and that its contents will not be concealed, removed, tampered with or destroyed until the issue of privilege is resolved.
Listing of itemsUnless it is impracticable in all the circumstances, no item may be removed from the premises by the named officer or other investigating officers until they have prepared a list of all the items to be removed, a copy of the list has been supplied to you, and you have been given a reasonable opportunity to check that the list relates to all the items concerned, and only to those items. This does not entitle you or your legal adviser to insist that the list or its contents should take any particular form.
ConfidentialityYou should note that, subject to the safeguards in relation to self-incrimination and legal privilege, you are not entitled to withhold a document or information by claiming that it is confidential.
Where it is possible to do so, it is suggested that after the investigation on the premises you should identify any information or document copied or taken that you consider to be confidential and provide a written explanation as to why it should be treated as such. For these purposes information is confidential if it is:
A document will be treated as confidential to the extent that it contains confidential information. It is for the Director to determine whether or not the information is to be disclosed in accordance with the Act.
Application to vary or discharge the WarrantYou are entitled to apply to the Court to vary or discharge the Warrant. If you intend to make such an application, you must first inform the named officer. An application to stop the Warrant from being executed must be made immediately upon it being served.
The application must be made to the judge who issued the Warrant, or if he is not available, to another High Court judge.
If you are making an immediate application to stop the Warrant from being executed, the named officer will delay starting or continuing a search of the premises for a reasonable period (not exceeding two hours) while you make your application, provided that you
Examples of conditions that the named officer may impose pursuant to (3) above include: that you do not disturb or move any document or information that is the subject of the Warrant; and/or you do not tell anyone other than your legal adviser about the Warrant or the investigation. WarrantEXPLANATORY NOTE TO WARRANT UNDER SECTIONS 62 AND 64 OF THE COMPETITION ACT 1998 (THE ACT)This Explanatory Note is provided for information only. It is not a detailed note of the powers under the Act or of the European Commission's powers of enquiry and investigation which are subject to interpretation respectively by the courts and the Court of Justice of the European Communities.
Subject matter and powersOfficers of the Director General of Fair Trading (the Director) and officials of the European Commission have been authorised under Warrant to enter and search the premises identified in the Warrant in connection with an investigation under the EC competition rules. The investigation has been ordered by a decision of the European Commission. The subject matter of this investigation is set out in paragraph 1 of the Warrant and in the European Commission's decision. The Director's officers and officials of the European Commission will not elaborate on this.
Paragraph 3 of the Warrant sets out the powers of the named officer,3 the other investigating officers and the officials of the European Commission under section 62 of the Act for the purposes of the present investigation. On entering the premises, the named officer, the other investigating officers and the officials of the European Commission will, as a matter of practice, produce evidence of their identity when producing the Warrant.
Unless the Court has ordered otherwise, the initial production of the Warrant and entry to premises must take place between 9.30 a.m. and 5.30 p.m. Monday to Friday and, once officers have entered premises under the authority of the Warrant, they may outside those times and whilst the Warrant remains in force, remain on the premises or re-enter the premises to continue executing the Warrant.
Access to legal adviceYou are advised to seek legal advice as explained in the European Commission's explanatory note to their Authorisation to Investigate, a copy of which will be produced to you by the officials of the European Commission.
Self-incriminationYou may be requested to provide oral explanations on the spot. However, if your undertaking is suspected of having committed an infringement of EC competition laws, or you have committed the offence of intentional obstruction under section 65 of the Act,4 you cannot be compelled to provide answers or statements that might involve an admission on your part of the existence of that infringement or offence.
Legally privileged communicationsThe powers of the Director's officers and officials of the European Commission do not apply in respect of documents or information that are legally privileged. The Court of Justice of the European Communities has recognised that correspondence between a client and an external legal adviser, entitled to practise in one of the Member States, is privileged where
Correspondence between a client and an external legal adviser who is not entitled to practise in one of the Member States or between a client and an in-house legal adviser is not recognised by the Court of Justice as being protected by legal privilege. However, where the in-house legal adviser is simply reporting the statement of an external legal adviser who is entitled to practise in one of the Member States, privilege will apply.
If you consider that a document or information is privileged, you should provide the officials of the European Commission with material of such a nature as to demonstrate to their satisfaction that the document or information, or parts of it, for which privilege is claimed, fulfil the conditions for it being privileged. If you fail to do so, you should gather together the items for which privilege is claimed. These items will not be examined or copied unless you reach an agreement with the named officer or the officials of the European Commission that they may be examined or copied. If no agreement is reached on the day of the investigation, the named officer or the officials of the European Commission will request that you make a copy of the items and place this in a sealed envelope or package in his or their presence. They will then discuss with you appropriate arrangements for the safe-keeping of these items pending resolution of the issue of privilege. For example, such arrangements may include a request that your legal adviser should give (or if no legal adviser is present, that you give), a written undertaking that the envelope or package will be retained safely and that its contents will not be concealed, removed, tampered with or destroyed until the issue of privilege is resolved.
Listing of itemsUnless it is impracticable in all the circumstances, no item may be removed from the premises by the named officer or the officials of the European Commission until they have prepared a list of all the items to be removed, a copy of the list has been supplied to you, and you have been given a reasonable opportunity to check that the list relates to all the items concerned, and only to those items. This does not entitle you or your legal adviser to insist that the list or its contents should take any particular form.
ConfidentialityYou should note that, subject to the safeguards in relation to self-incrimination and legal privilege, you are not entitled to withhold a document or information by claiming that it is confidential.
Where it is possible to do so, it is suggested that after the investigation on the premises you should identify any information or document copied that you consider to be confidential and provide a written explanation to the European Commission as to why it should be treated as such.
A document will be treated as confidential to the extent that it contains confidential information. It is for the European Commission to determine, subject to review by the Court of Justice, whether or not the information is to be disclosed, subject to the duty not to disclose information of the kind covered by the obligation of professional secrecy (Article 287 (ex 214) of the Treaty establishing the European Community and Article 20 of Council Regulation (EEC) No. 17/625).
Application to vary or discharge the WarrantYou are entitled to apply to the Court to vary or discharge the Warrant. If you intend to make such an application, you must first inform the named officer. An application to stop the Warrant from being executed must be made immediately upon it being served.
The application must be made to the judge who issued the Warrant, or if he is not available, to another High Court judge.
If you are making an immediate application to stop the Warrant from being executed, the named officer will delay starting or continuing a search of the premises for a reasonable period (not exceeding two hours) while you make your application, provided that you
Examples of conditions that the named officer may impose pursuant to (3) above include: that you do not disturb or move any document or information that is the subject of the Warrant; and/or you do not tell anyone other than your legal adviser about the Warrant or the investigation. The Court cannot question the need for the investigation, nor the lawfulness of the assessments of fact and law made by the European Commission in adopting the decision to order the investigation. Such issues may be raised only in proceedings for review of that decision brought before the Court of First Instance of the European Communities. WarrantEXPLANATORY NOTE TO WARRANT UNDER SECTIONS 63 AND 64 OF THE COMPETITION ACT 1998 (THE ACT)This Explanatory Note is provided for information only. It is not a detailed note of the powers under the Act or of the European Commission's powers of enquiry and investigation which are subject to interpretation respectively by the courts and the Court of Justice of the European Communities.
Subject matter and powersOfficers of the Director General of Fair Trading (the Director) and officials of the European Commission have been authorised under Warrant to enter and search the premises identified in the Warrant in connection with an investigation under the EC competition rules. The investigation has been ordered by a decision of the European Commission. The subject matter of this investigation is set out in paragraph 1 of the Warrant and in the European Commission's decision. The Director's officers and officials of the European Commission will not elaborate on this.
Paragraph 3 of the Warrant sets out the powers of the named authorised officer,6 the other investigating officers and the named officials of the European Commission under section 63 of the Act for the purposes of the present investigation. On entering the premises, the named authorised officer, the other investigating officers and the named officials of the European Commission will, as a matter of practice, produce evidence of their identity when producing the Warrant.
Unless the Court has ordered otherwise, the initial production of the Warrant and entry to premises must take place between 9.30 a.m. and 5.30 p.m. Monday to Friday and, once officers have entered premises under the authority of the Warrant, they may outside those times and whilst the Warrant remains in force, remain on the premises or re-enter the premises to continue executing the Warrant.
Access to legal adviceYou are advised to seek legal advice. If you decide to do so you should act promptly and this must not unduly delay or impede the investigation. Any delay must be kept to a strict minimum.
Self-incriminationYou may be requested to provide oral explanations on the spot. However, if your undertaking is suspected of having committed an infringement of EC competition laws, or you have committed the offence of intentional obstruction under section 65 of the Act,7 you cannot be compelled to provide answers or statements that might involve an admission on your part of the existence of that infringement or offence.
Legally privileged communicationsThe powers of the Director's officers and named officials of the European Commission do not apply in respect of documents or information that are legally privileged. The Court of Justice of the European Communities has recognised that correspondence between a client and an external legal adviser, entitled to practise in one of the Member States, is privileged where
Correspondence between a client and an external legal adviser who is not entitled to practise in one of the Member States or between a client and an in-house legal adviser is not recognised by the Court of Justice as being protected by legal privilege. However, where the in-house legal adviser is simply reporting the statement of an external legal adviser who is entitled to practise in one of the Member States, privilege will apply.
If you consider that a document or information is privileged, you should provide the named officials of the European Commission with material of such a nature as to demonstrate to their satisfaction that the document or information, or parts of it, for which privilege is claimed, fulfil the conditions for it being privileged. If you fail to do so, you should gather together the items for which privilege is claimed. These items will not be examined or copied unless you reach an agreement with the named authorised officer or the named officials of the European Commission that they may be examined or copied. If no agreement is reached on the day of the investigation, the named authorised officer or the named officials of the European Commission will request that you make a copy of the items and place this in a sealed envelope or package in his or their presence. They will then discuss with you appropriate arrangements for the safe-keeping of these items pending resolution of the issue of privilege. For example, such arrangements may include a request that your legal adviser should give (or if no legal adviser is present, that you give), a written undertaking that the envelope or package will be retained safely and that its contents will not be concealed, removed, tampered with or destroyed until the issue of privilege is resolved.
Listing of itemsUnless it is impracticable in all the circumstances, no item may be removed from the premises by the named authorised officer or the named officials of the European Commission until they have prepared a list of all the items to be removed, a copy of the list has been supplied to you, and you have been given a reasonable opportunity to check that the list relates to all the items concerned, and only to those items. This does not entitle you or your legal adviser to insist that the list or its contents should take any particular form.
ConfidentialityYou should note that, subject to the safeguards in relation to self-incrimination and legal privilege, you are not entitled to withhold a document or information by claiming that it is confidential.
Where it is possible to do so, it is suggested that after the investigation on the premises you should identify any information or document copied that you consider to be confidential and provide a written explanation to the European Commission as to why it should be treated as such.
A document will be treated as confidential to the extent that it contains confidential information. It is for the European Commission to determine, subject to review by the Court of Justice, whether or not the information is to be disclosed, subject to the duty not to disclose information of the kind covered by the obligation of professional secrecy (Article 287 (ex 214) of the Treaty establishing the European Community and Article 20 of Council Regulation (EEC) No. 17/628).
Application to vary or discharge the WarrantYou are entitled to apply to the Court to vary or discharge the Warrant. If you intend to make such an application, you must first inform the named authorised officer. An application to stop the Warrant from being executed must be made immediately upon it being served.
The application must be made to the judge who issued the Warrant, or if he is not available, to another High Court judge.
If you are making an immediate application to stop the Warrant from being executed, the named authorised officer will delay starting or continuing a search of the premises for a reasonable period (not exceeding two hours) while you make your application, provided that you
Examples of conditions that the named authorised officer may impose pursuant to (3) above include: that you do not disturb or move any document or information that is the subject of the Warrant; and/or you do not tell anyone other than your legal adviser about the Warrant or the investigation. The Court cannot question the need for the investigation, nor the lawfulness of the assessments of fact and law made by the European Commission in adopting the decision to order the investigation. Such issues may be raised only in proceedings for review of that decision brought before the Court of First Instance of the European Communities.
FOOTNOTES
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