Dawn raids and mobile phones

Mobile phones feature as a very practical and recurrent issue in dawn raids (i.e. unannounced inspections) conducted by regulators such as the European Commission, Ireland’s Competition and Consumer Protection Commission or the UK’s Competition and Markets Authority.

What is the practical advice for business executives on how to handle the issue?

While each case differs, some general points are clear:

1. All mobile phones on the premises are usually subject to inspection – this includes even personal/private (i.e. non-company)-owned phones. This is because the warrant or decision authorising the inspection refers to the premises and not just to the property owned by the entity being inspected.
2. If a phone is genuinely private/personal and has no business-related content then inspectors will either accept that assertion or, more likely, make a quick inspection to see if it is free of all business-related communications. It is imperative that employees are cautious and do not assert that it is a private phone if there is any chance of it containing business related content because one must never mislead inspectors – it can be a criminal offence to do so.
3. If a phone is being copied or removed, then the phone owner could be without that phone for some hours or even days. As most people do not usually have a separate record of key numbers stored on their phones, phone users should ask the inspectors for permission to note down some key numbers.  Inspectors usually grant that permission but accessing the phone will be under the supervision of an inspector. It could be useful to also change the “message greeting” on the phone to say that the phone user will be uncontactable for a period of time.
4. Do not delete anything on the phone. One company was fined €15m for one of its managers deleting WhatsApp messages – this was a high fine even though the messages were restored four hours later – see Irish Times article, Irish Independent commentary, European Commission press release and European Commission decision.
5. If there is any communication on the phone (e.g. a text, email or social media message) which could be the subject of “legal professional privilege” (e.g. advice from an EU qualified lawyer) then identify to the inspector the names/firms of such lawyers and assert privilege in respect of such messages even before the phone is reviewed. One can assert privilege later but it is best to do so in advance.
6. Some regulators may take away the phone and provide a copy or clone later. Some regulators (such as the European Commission) may only copy what is on the phone and must return the phone to the phone user before leaving the premises.
7. Passwords must be provided to the inspectors if they ask for them. If the passwords cannot be remembered (e.g. an attachment has a password but the phone user cannot remember the password) then the document or item is usually copied and attempts will be made later to read it.
8. While regulators nowadays have a much harder task in terms of the enormous volume of data available to them compared to the paper-based systems many years ago, regulators are now usually able to discover breaches more easily and more completely because people are more casual and less careful about texts, emails and social media messages than they would be about paper correspondence. Moreover, technology enables regulators to map out who was in contact with whom and when. Equally, electronic records are more durable and usually more complete than paperwork which can get lost.  Indeed, examining mobile phones can alert regulators to other issues beyond what they were investigating. Put simply, phones can be a treasure-trove for inspectors.

For more information on EU and national competition dawn raids and inspections, please contact Dr Vincent Power, Partner or any member of A&L Goodbody's EU, Competition & Procurement team..

Date published: 18 February 2025