Introduction

After a temporary decline during the COVID-19 pandemic, unannounced company inspections, better known as dawn raids, have returned with renewed intensity to the enforcement arsenal of regulators. Since our 2021 blog on the practical do’s and don’ts during an unannounced raid, we have seen significant legal developments concerning the legality, scope and procedural safeguards of dawn raids and the subsequent penalty decisions. Recently, several groundbreaking judgments by the Court of Justice of the European Union (“CJEU”) and the General Court of the European Union (“General Court”) have tightened the rules of the game.

In this blog, we analyse the most recent legal developments surrounding dawn raids and what they mean for businesses. We discuss when a raid is justified, what safeguards apply during a raid, and what the rights of defence are during and after a raid. In doing so, we base ourselves on recent high-profile cases such as those involving Red Bull, Michelin, Symrise, Qualcomm, Nuctech, and the French supermarket case.

Table of contents

• When is a dawn raid justified?
• Safeguards during and after a dawn raid
• Procedural errors in the presentation of evidence and violation of rights of defence
• Conclusion and practical tips

When is a dawn raid justified?

Legal basis and conditions

Dawn raids may only take place when there are concrete indications of anti-competitive behaviour. The legal basis for a raid by the Netherlands Authority for Consumers and Markets (Autoriteit Consument & Markt, “ACM”) is enshrined in the General Administrative Law Act (Algemene wet bestuursrecht, “Awb”) and the Netherlands Authority for Consumers and Markets Establishment Act (Instellingswet Autoriteit Consument en Markt). For the European Commission (“Commission”), these powers derive from Regulation 1/2003. The powers are further defined and delimited by national and European case law.

Dawn raids by the ACM (whether or not in support of the Commission) may only take place if there are concrete indications of conduct such as:

• Abuse of a dominant position;
• Prohibited price or other cartel agreements between undertakings;
• ‘Gun jumping’ (premature implementation of a notifiable concentration without approval);
• Violation of the Digital Markets Act; or
• Violation of the Foreign Subsidies Regulation (“FSR”).

These concrete indications may originate from various sources:

• (Anonymous) reports from competitors, suppliers and/or customers;
• Tips from former employees or other parties involved; and/or
• Market studies by the ACM or the Commission.

For example, in early 2025, the ACM announced that it would launch five new market investigations into, among other things, digital learning resources and veterinary practices, which could ultimately lead to further investigations and possibly even unannounced company inspections.

Legality of dawn raids: new emphases in case law

The threshold for conducting a dawn raid is relatively low. Until recently, there were relatively few rulings by European and Dutch courts on the legality of raids, considering the particularly limited possibilities for bringing annulment actions in appeal. Despite this, recent developments in case law show that challenging dawn raids (and the decisions on which they are based) can nevertheless be successful. Following (European) case law, there has been increasing attention for procedural safeguards that protect undertakings against excessive investigative powers.

České dráhy case: broad but limited powers of the Commission in competition raids

On 30 January 2020, in the České dráhy case, the CJEU confirmed the Commission’s broad powers to carry out unannounced raids in competition investigations. The case concerned a dawn raid on the Czech railway company České dráhy, following information provided to the Commission by the Czech competition authority about possible abuse of a dominant position through predatory pricing.

The Commission carried out an initial raid on the basis of these indications. Following information obtained during this raid, the Commission decided to carry out a second raid. However, the CJEU ruled that there were insufficient concrete indications for the second raid. The decision did not meet the requirements of necessity and proportionality and was therefore partially annulled.

In this ruling, the CJEU furthermore emphasised a number of important principles regarding dawn raids. Firstly, the Commission does not need to examine exculpatory evidence when deciding to conduct a raid, as long as there is sufficient incriminating evidence. Secondly, information from a national competition authority may already provide sufficient grounds for a raid. Finally, the scope of the decision to carry out a search must be specific and not too broad, to ensure that the company under investigation can properly understand and exercise its rights.

This ruling confirms the Commission’s broad powers to carry out raids to enforce competition law, but also sets clear limits to prevent arbitrariness and disproportionate infringements of the right of defence.

French supermarket case: clear requirements for documentation and specific indications for a raid

An important ruling that has tightened the procedural requirements for dawn raids is the so-called French supermarket case. In 2017, the Commission carried out unannounced raids at several French supermarket chains, including Casino and Intermarché, in relation to suspected anti-competitive agreements.

The supermarkets in question argued that the Commission had not correctly recorded the interviews that served as the basis for the unannounced raids. For its file, the Commission had only prepared summaries of interviews with third parties, without including full reports of these conversations. The General Court had previously ruled that this obligation did not apply before the formal opening of an investigation.

In this judgment, the CJEU clarified that the General Court’s position is incorrect. The CJEU ruled that the obligation to record interviews does not depend on the stage of the proceedings, but rather on the purpose of the conversations. According to the CJEU, interviews conducted to gather information on the subject of the investigation – such as substantiating a reasonable suspicion justifying a dawn raid – must be properly documented by the Commission. This ruling strengthens the procedural safeguards for companies facing competition investigations and sets limits on the Commission’s investigation methods, including in the preparatory phase.

Telemarketing: whose door are we knocking on?

This formal approach is also followed in the Netherlands. In November 2021, as part of an investigation into compliance with consumer law in the telephone sale of energy contracts, the ACM decided to conduct an unannounced inspection at Global Marketing Bridge B.V. (“GMB”), an intermediary that recruits customers by telephone for energy suppliers. Although the ACM had learned from information provided by landlord Regus that GMB’s activities might have been continued under the company name Sales Innovators B.V. (“SI”), it only included GMB and its affiliated companies in its description of the dawn raid’s purpose. Upon arrival at the address, the persons involved informed the ACM that SI, rather than GMB, was now located at this location. Nevertheless, the ACM decided to continue its investigation and ultimately imposed a fine on SI and its manager for a violation of consumer law.

In December 2023, the preliminary relief judge ruled that the factual continuity (whether SI had taken over GMB’s activities) was not decisive for the description of the purpose. Since SI simply fell outside the scope of the (group of) undertakings that were the subject of the investigation, the inspection was unlawful as it violated Article 8 of the ECHR and Article 7 of the Charter. Since the supporting evidence used to establish the violation had been obtained during these company raids, the preliminary relief judge suspended the fine and publication decision. However, after the ACM withdrew the fine decision, the District Court of The Hague ruled in May 2025 that the ACM was not obliged to pay damages, as it was likely the ACM would have launched an investigation into SI even in the absence of that procedural error.

Red Bull: detailed complaint from competitor provides sufficient evidence

Apart from the strict requirements for the more formal aspects at the outset, the General Court has confirmed in recent case law that a dawn raid is not easily deemed unlawful based on substantive grounds, such as a lack of sufficient evidence or an overly broad description of the purpose.

In March 2023, the Commission carried out an unannounced raid at Red Bull’s premises for alleged anti-competitive practices aimed at excluding competing energy drink producers. Red Bull subsequently appealed the inspection decision and requested the Commission to pay damages for the allegedly disproportionate scope and duration of the investigation. According to Red Bull, the Commission seized an excessive amount of business data during the raid and the raid was based solely on the complaint of its largest competitor, Monster Energy. On appeal, Red Bull therefore complained, among other things, about the lack of justification for the inspection decision and the violation of its substantive rights of defence.

The General Court ruled in favour of the Commission and found that the inspection decision was sufficiently precise and reasoned. The Commission had sufficient concrete evidence, including an 80-page complaint from a competitor, supplemented by emails, meeting reports and several additional requests for information. Contrary to Red Bull’s arguments, the Court did not consider it necessary in this case to verify the information with other market participants. Moreover, the Court found the fact that the Commission used open formulations and cautious terms in its inspection decision is inherent to the early stage of the investigation.

The raid was also not disproportionate, as this was the only way to obtain information that Red Bull was not expected to provide voluntarily. According to the Court, objections to the conduct of the raid, such as the search of mobile phones and the behaviour of the officials involved, do not affect the legality of the inspection decision as such. Red Bull has since lodged an appeal with the CJEU.

Symrise v. Michelin: wide margin of discretion to combine evidence provided it is sufficiently specific

Fragrance supplier Symrise was also unsuccessful in its claim for annulment of the inspection decision in the course of 2025. On 30 April 2025, the General Court ruled that the Commission was entitled to rely on a combination of evidence, including responses to requests for information from third parties and intelligence reports, even if (part of) the evidence came from a single source. In doing so, the General Court confirmed that indications must be assessed in their mutual context and that the Commission was entitled to rely on information from previous ex officio investigations. The fact that Symrise was not mentioned in the requests for information received did not, in view of its market position, detract from the Commission’s justified suspicions. The General Court thus confirmed the existing line that competition authorities have a wide margin of discretion when taking inspection decisions.

For Michelin, however, things turned out differently. On 10 January 2024, the Commission carried out dawn raids at several tyre manufacturers, including Michelin, on suspicion of prohibited price fixing on the wholesale markets for new and replacement tyres for passenger cars and trucks. The Commission based its decision on, among other things, a large-scale analysis of so-called ‘public earnings calls’ and other public announcements that may have signalled future price increases. Michelin lodged an appeal against the inspection decision in March 2025, arguing that the Commission had not substantiated its suspicions sufficiently, particularly in relation to the beginning of the alleged cartel period, and that public earnings calls could not form a plausible basis for (a suspicion of) prohibited cartel agreements.

The General Court ruled that the Commission did indeed have sufficient concrete evidence to justify the raid and did not consider the raid to be disproportionate. Contrary to Michelin’s argument, the Commission was entitled to attach importance to the earnings calls, as the information contained therein could contribute to substantiating the suspected price coordination for part of the period under investigation. However, for an earlier period, the Commission had not provided any specific evidence showing possible coordination. The General Court therefore annulled those parts of the decision pertaining to the alleged infringement period.

These recent rulings underscore the importance for undertakings to critically analyse the description of the purpose of the dawn raid, as well as any other parts of an inspection decision (in the case of the Commission) and to be aware of their rights and obligations. Although the Commission can generally suffice with a fairly broad description of the purpose in an inspection decision, and can rely on various types of information as ‘indications’, it is nevertheless advisable to remain alert to both the substance and scope of the investigation, as well as to any potential procedural irregularities during the investigative process.

Safeguards during and after a raid

Obligation to cooperate and powers of supervisory authorities

In the event of a raid by the Commission or the ACM, companies have a legal duty to cooperate. Companies are obliged to provide complete and accurate information; failure to cooperate, or the provision of misleading information may result in fines up to 1% of the undertaking’s annual turnover. This obligation is limited to the purpose and subject matter of the investigation, as communicated at the outset.

The powers of the supervisory authorities during a raid are extensive and include the power to:

• Enter the organisation’s buildings, premises and means of transport, accompanied by the police if necessary;
• With the permission of the examining magistrate: enter third-party premises and private homes;
• Inspect records and make copies thereof;
• Affix seals;
• Take statements from persons who consent; and
• Request clarifications regarding facts or documents, provided these fall within the scope of the investigation.

Consequences of non-cooperation

Regulators take serious action against undertakings that withhold or delete information during a dawn raid. A severely sanctioned form of non-cooperation is the deletion of relevant communications, such as messages on mobile phones or via chat services.

In March 2023, the Commission and competition authorities from the US, the UK and Switzerland raided companies in the fragrance industry. Although the investigation is still ongoing, the Commission has already imposed a fine of €15.9 million on International Flavours & Fragrances after an employee deleted messages from his mobile phone during the raid.

Such conduct is also severely penalised in other countries. In September 2023, two companies in Poland were jointly fined approximately €2.6 million by the Polish competition authority for deleting WhatsApp messages during an investigation into alleged price fixing involving coffee machines. In 2019, the ACM also imposed a fine of €1.84 million on a company for deleting WhatsApp messages during an ongoing raid.

Nuctech: cooperation also required if information is stored on non-EU servers

In preliminary relief proceedings before the CJEU, Chinese manufacturer of detection equipment Nuctech challenged the Commission’s inspection decision requiring Nuctech to cooperate with raids. In the spring of 2024, the Commission raided Nuctech subsidiaries in the Netherlands and Poland on suspicion of anti-competitive foreign subsidies (based on the FSR). Nuctech requested a suspension of the Commission’s investigation, arguing that the Commission’s territorial investigative powers did not extend to mailboxes stored on servers in China. According to Nuctech, Chinese criminal law would prohibit and penalise granting access to such information.

The General Court and subsequently the CJEU considered these arguments to be insufficiently substantiated and, in balancing the interests involved, held that Nuctech – by carrying out activities in the EU – had chosen to submit to EU law. Nuctech is therefore, in principle, obligated to cooperate with an inspection decision in which the Commission requests access to business mailboxes used for the daily conduct of activities in the EU.

Legal protection during a dawn raid: three essential rights

The powers of the ACM and the Commission during a dawn raid are limited. Companies and their employees have three essential rights during a raid:

Right to legal assistance

A company has the right to legal assistance during a dawn raid by the Commission or the ACM. In its judgment of 6 September 2024, the Dutch Supreme Court held that, under the ECHR, administrative bodies such as the ACM are required to inform the parties concerned in a timely and active manner of this right as soon as it becomes apparent that a punitive sanction may be imposed. In this light, the question also arises as to whether the ACM’s policy of waiting a maximum of 30 minutes for a solicitor to arrive during a dawn raid, is still in accordance with the ECHR. If the person concerned is unable to effectively exercise their right to assistance before the raid begins, there is a risk that their right to a fair trial will be violated. This may raise questions about the sustainability of this approach under the current human rights framework.

Right to remain silent

Regulators are authorised to obtain information from employees in the context of the investigation. However, employees of a company suspected of having infringed competition rules are not obliged to answer questions that could incriminate themselves or the company. Before questioning begins, the official conducting the interview must inform the employee of their right to remain silent (‘cautie’). Employees therefore cannot be forced to make incriminating statements. This does not apply to factual information.

Legal privilege

Communication between a company and its external attorney is covered by what is known as legal privilege. No access may be demanded to correspondence, documents and advice exchanged between the company and its attorneys. Officials are also not permitted to make copies of this information.

Previously, ACM policy allowed ACM employees to briefly review privileged communications to assess whether legal privilege applied, but this policy was amended following the Dutch Supreme Court judgment of 12 March 2024. Since then, such material can be requested and is instead submitted to an ACM privacy officer for review. This remains controversial, as it is still an ACM official who decides on the applicability of legal privilege, rather than an independent third party.

Procedural errors in the presentation of evidence and rights of defence

The increased emphasis on procedural safeguards is reflected not only in challenges to the legality of dawn raids on undertakings, but also in objections to the working methods in the reporting phase after a raid (as a prelude to the decision to impose a fine). In several recent cases, the Commission’s penalty decisions have been overturned, not only because of substantive shortcomings, but also because of procedural flaws that affected companies’ right of defence. The case law below demonstrates that procedural fairness is essential throughout the investigation leading up to the final penalty.

Qualcomm case: procedural shortcomings in the evidence and scope of the Statement of Objections

On 15 June 2022, the General Court annulled a fine of nearly €1 billion imposed by the Commission on chipset developer Qualcomm. In 2018, the Commission had found that Qualcomm had abused its dominant position by making exclusivity payments to Apple for the purchase of LTE chipsets.

In addition to substantive deficiencies in the evidence (the Commission had failed to demonstrate that there were market foreclosure effects), the General Court found several procedural irregularities:

1. The Commission had failed to document the exact content of all conversations, including meetings and conference calls with third parties; and

1. The penalty decision ultimately only concerned one relevant market, whereas the Statement of Objections (“SO”) covered several markets. This affected the relevance of Qualcomm’s economic analysis, without Qualcomm being given the opportunity to respond.

According to the Court, these procedural errors violated Qualcomm’s right of defence and resulted in the complete annulment of the decision.

Sony case: relationship between Statement of Objections and final decision

On 16 June 2022, the CJEU emphasised the importance of a careful administrative procedure in the Sony case. The competition infringement concerned an alleged cartel between Sony, Quanta and the joint ventures of Toshiba and Samsung. In its decision, the Commission found that there was both a single continuous infringement and a number of separate infringements. However, these separate infringements were additional to those covered in the previously issued SO. Contrary to the judgment of the General Court, the CJEU concluded that this violated the cartelists’ rights of defence, as these separate infringements had not been sufficiently investigated and qualified in the SO, which denied the parties the opportunity to respond.

BEH and Others v Commission: inadequate evidence and procedural safeguards

A more recent example is the case of Bulgarian Energy Holding (“BEH”) against the Commission. On 25 October 2023, the General Court annulled the €77 million fine imposed in 2018 on the state-owned gas company for alleged abuse of a dominant position between 2010 and 2015. In addition to the fact that the Commission had failed to demonstrate that the specific requirements of the ‘essential facilities’ doctrine had been met, the General Court found that the Commission had committed serious procedural errors:

1. The Commission had failed to document certain minutes of meetings with third party Overgas; and
2. Exculpatory meeting minutes with third parties, which later proved essential to BEH’s defence, were kept out of the case file.

These procedural flaws had prejudiced BEH in its defence, leading to the complete annulment of the fining decision.

The above cases illustrate the growing importance of procedural safeguards in European competition cases that result in punitive sanctions. The courts set high standards for the care with which the Commission conducts its investigations and the manner in which it guarantees the rights of defence of undertakings.

Conclusion and practical tips

Dawn raids are back and more intensive than ever. At the same time, recent rulings demonstrate that the authorities’ legal leeway is not unlimited. The (European) courts are imposing increasingly stringent requirements on the justification, proportionality and procedural diligence of dawn raids. This presents an opportunity for companies to successfully challenge a raid – or the subsequent decision to impose a fine – provided they invoke their rights in a timely and correct manner. For companies involved in competition investigations, it is crucial to be aware of their procedural (defence) rights from the outset. Practice shows that a strategic and legally sound approach during and after a raid can make all the difference.

A practical step-by-step plan for companies in the event of a raid:

1. Preparation is crucial: Ensure that you have an up-to-date dawn raid protocol in place, including a contingency plan with internal and external contacts.
2. Act immediately and in a legally sound manner: Request legal assistance immediately and wait to make any statements until an attorney is present. Inform the authority that you are aware of your rights.
3. Document the raid yourself: Check the description of the purpose (and, if applicable, the inspection decision) before the authority enters and keep accurate records of what its personnel is doing, what questions are being asked and what documents are being viewed or copied.
4. Avoid obstruction while protecting the boundaries: Cooperate, do not remove any materials, but remain alert to any overreach of authority. Seek clarification if requests are unclear, and do not respond hastily based on assumptions. Object where necessary and ensure this is formally documented.
5. Know and exercise your rights: Remember your right to remain silent, your right to legal assistance and your legal privilege. Ensure that these rights are respected. For example, be vigilant about whether and, if so, when the ‘cautie’ is given and to whom, and make a note of this yourself.
6. Consider objecting or appealing: Recent case law shows that raids and penalty decisions are increasingly being overturned due to procedural errors. Therefore, always have a legal review carried out to determine whether there are grounds to challenge the method or scope of the raid in court.

With thanks to our former colleague Lara Elzas.