The Power to Carry Out Dawn Raids Under the Digital Markets Act: Nothing More Than a Scarecrow?
摘要
In recent years, there has been an increased focus among legislators on effective enforcement and a perceived conception that this requires both tough sanctions and powerful investigatory tools. When the European Commission (the Commission) proposes new sectoral legislation, such proposals often include a range of tough enforcement powers. The recently adopted Digital Markets Act (the DMA) is no exception. To the contrary, already the recitals declare that in order to ensure effective implementation and compliance with the regulation, the Commission should have strong investigative and enforcement powers. One of these powers is the power to carry out unannounced inspections, dawn raids. The dawn raid is a powerful tool often relied on by the Commission in its antitrust investigations. It allows the enforcer to enter the premises of a company—and sometimes also the homes of its employees—to identify and seize documents or data of relevance to its investigation. It is the intrusive character of the dawn raid that makes it so powerful, but this intrusiveness also entails an inherent risk that fundamental rights of those targeted are not properly safeguarded. Taken by surprise and with the officials at your doorstep, you may not be in the best position to safeguard your rights. This Chapter examines the power to carry out inspections under the DMA and the extent to which the Commission will be able to use it without infringing the fundamental rights of targeted companies. Unlike the antitrust rules, the DMA introduces an intricate monitoring system, requiring targeted companies to demonstrate their compliance with the regulation while at the same time providing the Commission with extensive monitoring powers, allowing it to carry out inspections also in situations where the targeted company is not suspected of any wrongdoing. Given the strict regulation and supervision of gatekeepers under the DMA—coupled with the Commission’s power to supplement the DMA and add additional obligations on the gatekeepers—it is argued that what on paper appears to be a tool that could be used in a variety of situations, the dawn raid will only be available in a limited number of situations and may then not even be that useful. Instead, it is the threat of a dawn raid that will most likely provide any value to the Commission’s enforcement of the DMA.