It appears that the first EU regulatory inspections have resumed since the start of the COVID-19 pandemic, with a press release from the European Commission’s Competition Law Regulator, DG Comp, on 22 June 2021 revealing that it carried out an unannounced inspection, or Dawn Raid, in Germany as part of a cartel investigation.
The on-going effects of COVID-19 restrictions is evident in the press release, which states that the Raid was “conducted in compliance with COVID-19 health and safety protocols in order to protect all individuals involved”.
The Irish Landscape Since COVID-19
Meanwhile, in Ireland there has been no report of any Competition and Consumer Protection Commission ("CCPC") Dawn Raids under its competition law powers since COVID-19 restrictions were first introduced. As regards the CCPC’s consumer law inspection powers, the CCPC has reported a reduction in on-premises inspections during 2020 due to COVID-19.
However, there have been a limited amount of 2020 on-premises inspections of grocery premises’ compliance with consumer law rules on displaying the selling price of goods offered for sale, in particular. With limited ability to carry out on-premises inspections, the CCPC has stated that it has shifted its consumer law enforcement focus to inspections of retailers’ websites. Over 50 websites selling goods and services were subject to desktop, online inspections in 2020 for various consumer protection legislative requirements including product pricing; unfair commercial practices; consumer rights; e-commerce; and online dispute resolution laws.
The CCPC also examined 47 additional websites as part of a response to new consumer issues related to COVID-19.
Future Issues in the Irish Landscape
Due to EU DG Comp Dawn Raid activity having been paused during COVID-19, we have yet to see whether DG Comp Dawn Raids will become a more frequent occurrence in Ireland due to Brexit. Some commentators have predicted this due to EU regulators no longer being able to Dawn Raid in the UK and many UK-headquarters international businesses having offices in Ireland also.
Another issue of concern for Irish businesses is how future home-working arrangements will affect their policies for ensuring preparedness for a Dawn Raid.
Finally, businesses should note a proposed change in Irish law relevant to Dawn Raids - a new Garda Síochána Powers Bill, proposed by the Department of Justice, is currently moving through the Irish legislative process. This Bill explicitly provides that it is an offence not to give phone passwords to the CCPC during a Dawn Raid pursuant to a court warrant. The Bill also provides that the CCPC may seek such a warrant even where they do not yet suspect that any offence has been committed.
We understand that the intention of this Bill is to remove any legal uncertainty as to whether passwords must be handed over pursuant to existing laws against obstruction of Dawn Raids, rather than to substantially change the law.