In recently published guidelines, the Belgian Competition Authority ("BCA") clarified how it will proceed when conducting unannounced inspections. The text is, in essence, a codification of existing practice, updated where needed in the light of the new Competition Act. The guidelines devote special attention to the selection and processing of electronic documents, and the measures taken to prevent documents which are "out of scope" or protected by the Legal Professional Privilege ("LLP") from being accessible to the investigation team. The Dutch-language and French-language versions of the BCA's guidelines (Official Gazette 24 December 2013, p. 102122) can be consulted via this link.
The text starts with the marked statement that the investigation team can start the investigation immediately after having notified the decision ordering the inspection and the authorisation by the examining magistrate. The team is not required to wait for the arrival of an attorney. So far, however, in general it has been the practice of the investigation team to wait 30 minutes before starting the inspection.
The importance of electronic data and documents in establishing possible infringements of competition law has increased. Indeed, the guidelines confirm that inspections will focus primarily on digital files. This means that the investigation team often will copy a large number of files and will later carry out a selection using specialised software and keywords. Such a procedure, of course, creates the risk of too broad a selection (including documents which do not relate to the matters being investigated) and also seizure of documents protected by the "LLP" (correspondence with external counsel and legal advice by in-house counsel).
In addition, the documents must always be selected in the presence of the company's representatives. Potentially "out of scope" or "LLP" documents must be sealed in secured envelopes, to be handled by an auditor ("auditeur") at a later stage. The undertaking has at least 10 working days to draw up a list identifying and justifying the "out of scope" or "LPP" nature of these documents. When it is established that these documents are "out of scope" or protected by the "LLP", they will be removed from the investigation file.
Finally, in accordance with recent case law of the Brussels Court of Appeal, the BCA expressly confirms in its guidelines that the protection of the Legal Professional Privilege in Belgian law also extends to legal advice by in-house counsel who are members of the Institute for in-house counsel ("Instituut voor bedrijfsjuristen"/"Institut des juristes d'entreprise").