The Bosnian national competition authority (NCA), the Competition Council of Bosnia and Herzegovina, has published a guidance on how it collects information and documents on the party’s premises.
How are dawn raids regulated in Bosnian competition law?
Dawn raids in the antitrust sphere are in Bosnian law regulated only summarily. Actually, the Bosnian Competition Act does not even mention expressly unannounced inspections, or dawn raids, as they are more often called.
Specifically, the Bosnian Competition Act merely pronounces that, in proceedings before the Competition Council, parties and other persons must, at the request of the person conducting the proceedings, deliver the requested information and documents and allow an on-site inspection of their business premises and other property.
The key phrase is at the request of the person conducting the proceedings – if such request is necessary, does it mean unannounced inspections are not possible in Bosnia and Herzegovina? In other words, if the Council would need to request specific info and documents from parties prior to making an on-site inspection, how could such inspection ever be unannounced?
The possibility of dawn raids in Bosnia and Herzegovina: A look from within the NCA
Considering this uncertainty about the possibility of dawn raids in Bosnian competition law, it is indeed useful to have a look at how this issue is viewed by the NCA itself. To that end, it is telling what how a former head of the Bosnian NCA described the dawn raid practice in Bosnia and Herzegovina in an interview published a couple of years back.
In the interview, the former head noted how Bosnia’s legal system is very complex, consisting of a number of police bodies, agencies and courts that would be competent in matters involving dawn raids. Further, he noted that the Bosnian NCA is understaffed, which further hinders the conduct of dawn raids. However, he did note that, while there have been no dawn raids so far, the Bosnian NCA has on several occasions performed announced on-site inspections.
What does the new guidance of the Bosnian NCA regulate?
With this context in mind, the new guidance issued by the Bosnian NCA seems to be primarily intended for announced on-site inspection. On the other hand, the guidance would also cover unannounced inspections, should the Bosnian NCA start to carry them out.
Be that as it may, the guidance inter alia regulates the following issues:
- who is, from the NCA’s side, authorized to perform dawn raids;
- what should the request for on-site inspection contain;
- what kind of documents and premises can the NCA inspect;
- seizure and keeping of documentation;
- the procedure for keeping business secrets concerning the documents obtained during inspection.
Adopted in February, the guidance has now already entered into force.
The Bosnian NCA has been reluctant to conduct dawn raids, due to the complexity of such endeavor under Bosnian law. In that sense, the newly published guidance may not lead the NCA to suddenly start performing unannounced inspections. However, the guidance may mean that the NCA is contemplating to use announced on-site inspections, which why its content is of significant practical importance.
For more information about competition law in Bosnia and Herzegovina, please contact Dr. Dragan Gajin, Head of Competition at Doklestic Repic & Gajin.