En oannonserad konkurrensrättslig inspektion – Om den efterföljande granskningen av en speglad hårddisk utanför företagens lokaler

An unannounced inspection in competition law confers a right for the com-mission or authorized national competition authority to visit the premises of a company before opening hours, in order to search documents for evidence of competition law infringements. Such a procedure is extremely intrusive, in questioning a company’s integrity; therefore the commission, or national competition authorities, have to act with utmost caution. A ‘forensic copy’ is an exact copy of the original hard drive and con-tains all stored documents and information, even information that has previ-ously been erased. The purpose of this essay is to problematize a specific aspect of the unannounced inspection, more precisely: the assertion by the commission and konkurrensverket of a right to conduct the examination and search of documents from a forensic copy of a hard drive within a compa-ny’s premises. Whether such a right can be justified is debatable; with nei-ther legislation, nor case law, providing an answer to this. There must be proportionality between the means and ends, which in-fer that the extent of the inspection must be contained within the frame of the matter and purpose of the decision. Furthermore, there is a demand for legal certainty to create a foreseeable procedure, with the right to defence being upheld. A document that is classified as a legal professional privilege, for example, is not comprised within their authority. To act outside this framework would mean that the authorities conduct a baseless inspection, akin to fishing expedition, which is forbidden in this context. The commission and konkurrensverket should always take human rights into consideration when conducting an unannounced inspection. The inspection is a measure of last resort and ought to be exclusively used when other means of discovering infringements seem to be inadequate. It is clear that a full evaluation needs to be carried out to check if the inspection’s effi-ciency outweighs the disruption and inconvenience it causes to a company. Therefore, there are also high demands on performance for a company throughout the process of the unannounced inspection. My conclusion is that there is no right for the commission and konkurrensverket to conduct the following search and examination of a fo-rensic copy from a hard drive within a company’s premises. Presently, I think the efficiency of the work is not commensurate to the intrusion of companies, particularly in relation to the amount of excess information that is encountered and the requirements of the right to defence; remembering that proportionality and legal certainty that needs to be maintained. Also, the fact that authorities can initiate new investigations from documents and evi-dence that is not covered by the decision; together with the unclear legisla-tion and lack of case law, supports this conclusion.