Digital evidence gathering : An update

This set of two articles is a follow-up of two studies published in previous issues of Concurrences on competition digital inquiries (N° 2-2010, pp. 188-192 et N° 2-2009, pp. 69-77). In the first contribution, Dirk Van Erps - DG COMP- describes the general outline of the methodology used by DG COMP with respect to digital evidence gathering during inspections. The EC procedure is characterized by the fact that inspectors aim at selecting the relevant documents on the spot. Only in exceptional circumstances is a copy of the relevant information sealed and taken to Brussels for investigation in the presence of the undertaking’s representatives. In the second contribution, Nathalie Jalabert Doury - private practice lawyer - recalls the methodology implemented by the French Competition Authority and the French DGCCRF to seize digital evidence during dawn raids. Her contribution underlines a number of significant differences with the EU methodology described by Dirk Van Erps. The author previously stressed that such a methodology raised a number of sensitive fundamental rights issues, which have so far largely been set aside by the French Supreme Court. Now that the European Commission has improved its methodology to allow for the review and selection of relevant information in reduced time periods and for electronic copies to be made on the spot, the debate on the evolution of the French methodology might well be back again.

This article is an update of a previous article published in Concurrences in 2010 : Thierry Fossier, Dirk Van Erps, «Inspections and digital inquiries : The point of view of the judge of control and the DG COMP] ». The views expressed here are the ones from the author and not of his institution. Voir aussi :Nathalie Jalabert-Doury, Saisies informatiques : Le régime français à l’épreuve des impératifs de conformité et de cohérence, Concurrences N° 2-2009 The EC practice Dirk VAN ERPS Forensic IT project manager, Head of Unit Cartels II, DG Competition, European Commission, Brussels 1. The Forensic IT group, a group within the Cartel Directorate of DG Competition, started operations in 2006. Today the team has five full-time equivalents and around 50 DG Competition staff are trained to use

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Nathalie Jalabert-Doury, Dirk Van Erps, Digital evidence gathering : An update, May 2013, Concurrences N° 2-2013, Art. N° 52014, pp. 213-219

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