The ACM recently announced its intention to more frequently conduct unannounced dawn raids. Considering that many people are working from home, it is not unlikely that the ACM will conduct dawn raids at private homes.
The purpose of such dawn raids (also known as unannounced company visits or inspections) is to collect evidence. The ACM will copy or collect digital and paper documents and often conduct interrogations. The ACM will then take the collected data to the ACM’s office for further investigation, in order to determine whether there is evidence for an infringement. If there is sufficient evidence, a sanction decision will most likely follow, often in the form of a penalty.
Below, we will provide more information on the several legal grounds and restrictions for conducting dawn raids at private homes.
Legal ground of ACM’s powers to enter/search private homes
The general power to perform dawn raids (e.g. of businesses) follows from the General Administrative Law Act (Algemene wet bestuursrecht, “Awb”). The ACM is a supervisor within the meaning of the Awb and pursuant to Section 5:15, it has the right to enter any place in so far as this is reasonably necessary for the performance of its duties. However, this general power does not extend to entering a private home without the resident’s consent.
The basic principle of Section 12 of the Netherlands Constitution and Article 8 of the European Convention on Human Rights is that a supervisor can only enter a private home without consent in exceptional cases. The power to do so must be set out in a special law. Both the Act Establishing ACM (Instellingswet ACM) and the Dutch Competition Act (Mededingingswet, “CA”) include such a ground.
Pursuant to Section 12c of the Act Establishing ACM, the ACM can enter a private home and pursuant to Section 50 CA, the ACM can search a private home. In both cases the ACM can only do so with a written authorization of an examining magistrate.
This means that there are three possible grounds for the ACM to raid a private home:
1. Entry with the consent of the occupant (Section 5:15 Awb);
2. Entry with an authorization of the examining magistrate (Section 12c Act Establishing ACM);
3. Search with an authorization of the examining magistrate (Section 50 CA).
Entry or search
There is a difference between entering and searching premises; in this respect, Section 12c of the Act Establishing ACM differs from Section 50 CA.
The power to enter a private home includes the right to “look around searchingly”. This means that a public servant may examine anything he sees lying or standing as he walks around. A public servant may also enter closed parts of the private home (such as a corridor, room or attic). However, he is not allowed to open any drawers, cupboards or areas (such as a ceiling or floor). The act of looking around searchingly is restricted to everything that is seen in the private home. If a public servant goes beyond looking around, he will be searching.
The legislator has chosen to restrict the power of searching to the ACM’s competition control (under Section 50 CA). This means that for purposes of its sector-specific supervision (for sectors like telecom, transport, post and energy) and for consumer protection, the ACM only has the power to enter and to look around searchingly (pursuant to the ACM-wide Section12c of the Act Establishing ACM).
Inspection of business information
The ACM almost always combines the power to enter or search a private home with the power to require inspection of business information and to copy it (pursuant to Section 5:17 Awb).
The occupant is obliged to cooperate (pursuant to Section 5:20 Awb). If the occupant of the private home is not present, in principle it will not be possible to require inspection of information. However, if there is a power to search the premises, the ACM can actively search for specific business information, for example in cupboards and hiding places. If the ACM only has the power to enter the premises, the ACM is not allowed to search and its power will be limited to ‘what it sees’.
The ACM cannot require inspection of personal data. This is an important distinction, particularly when dawn raids of private homes are concerned.
Example: Mobile phone
The ACM can inspect the information on a mobile phone, such as e-mail, WhatsApp, Instagram, photographs, etcetera. Where necessary, passwords must be disclosed to the ACM. However, inspection is restricted to the business information on the phone. This means that the ACM is allowed to view WhatsApp conversations with colleagues, but not private conversations with family members. In practice, it is not always possible to determine during a dawn raid what is business and what is private. Therefore, a copy is usually made of the entire phone, and at the ACM office a further selection is made to filter out the private information. See also this judgment of the Court of The Hague of 22 November 2017 and the ACM Procedure for the inspection of digital data.
Furthermore, an exception applies for privileged documents. If the ACM finds privileged correspondence with an attorney, the ACM has to keep this out of the investigation. The ACM can ‘glance’ at the information in order to assess whether it is privileged information. If the ACM is not convinced of the privileged nature of the information, the documents concerned will be taken in a closed envelope. A ‘Legal Professional Privilege Officer’ – a public servant of the ACM who is not involved in the investigation – will then assess whether the documents are privileged. See the ACM Procedure regarding the legal professional privilege of lawyers.
Private home or business premises
A private home is the area in which a person leads his private domestic life. Whether an area is a private home is therefore determined mostly by the destination given to it. If a private home is also used for other activities (such as working from home), it still remains a private home.
However, in some situations this distinction is less clear. For example if part of the private home is fit out as an office or business premises. This is often the case with self-employed individuals, sole proprietorships or small partnerships, or a hotel room or second house.
What should you pay attention to during a dawn raid at home?
In a previous article we provided a list of instructions to employees if the ACM wants to enter or search their home.
With regard to the legal ground of the ACM’s powers, it is most important to ascertain the following:
- Do the public servants request permission to enter the private home? If they do, you should refuse and ask to see the authorization of the examining magistrate. If they do not have this authorization, you should refuse them access.
- Do the civil servants have an authorization of the examining magistrate? Check the information in the authorization and the legal ground for the dawn raid.
- If the legal ground is Section 12c of the Act Establishing ACM, the ACM can only enter the private home and look around searchingly.
- If the legal ground is Section 50 CA, the ACM can search the private home.
- Do the public servants request to inspect documents pursuant to Section 5:17 Awb? You should keep an eye on the difference between business information and private or privileged information.
If you require more information, please contact our Dawn Raid Team.
The Dawn Raid Team of Kennedy Van der Laan supports companies and employees during dawn raids by Dutch and European supervisory authorities, including the ACM. We also help companies set-up compliance programs and prepare for a possible dawn raid and give trainings to employees.
