On November 10, 2021, the French Competition Authority (“FCA”) issued a press release indicating that it raided the premises of several companies in the food retail sector suspected of engaging in anticompetitive practices, as well as the homes of some employees.
While the press release does not give any details on the identity of the companies or anti-competitive practices suspected, it is noteworthy that the FCA inspected the homes of certain employees. Such inspections are provided for in the competition rules both at national and EU level, but have been rarely used in the past. Below is a short overview.
Under national law, the FCA has broad powers to investigate possible infringements of competition law, including the power to conduct dawn raids at non-business premises. Under Article L. 450-4 of the French Commercial Code, the FCA has the right to enter “any place”, including private homes, as long as documents relating to the suspected infringement are likely to be found there. Such inspections must be authorized by a court order from the liberty and custody judge. In practice however, it seems that the FCA has never carried out inspections at employees’ homes.
Similarly, at the EU-level, pursuant to Council Regulation (EC) No 1/2003, the European Commission (the “Commission”) may conduct dawn raids as part of an inquiry into possible anticompetitive practices on any premises, including the homes of directors, managers and other members of staff of the undertakings concerned, “[i]f a reasonable suspicion exists that books or other records related to the business and to the subject-matter of the inspection, which may be relevant to prove a serious violation” of Article 101 or 102 of the Treaty on the Functioning of the European Union are being kept there. Such decision to inspect a private home requires the prior authorization from the relevant judge of the Member State concerned.
Still, the power to conduct inspections of non- business premises has rarely been used in the past.
The first time the Commission used the power to investigate non-business premises was in May 2007 during the Marine Hoses cartel investigation, when the Commission inspected the private home of a director of one of the undertakings concerned. Since then, the Commission carried out inspections at employees’ homes on a few occasions, notably during the Commission’s investigation of the Shrimps cartel in March 2009.
With many employees increasingly working from home due to the Covid-19 pandemic and the introduction of hybrid working, it would not be surprising if competition authorities started to raid private premises more frequently going forward, given employees are more likely to keep business records at home. Interestingly, the UK government currently considers strengthening the UK competition authority’s powers in relation to dawn raids at non-business premises by giving the authority the possibility to “seize-and-sift” evidence (i.e., to take original documents off raided premises to establish at a later stage whether they are covered by the scope of the investigation) during inspections in private homes.
Companies should ensure that they have comprehensive guidelines for dawn raids both at business and private premises. This is even more important in light of the recent statement by the EU Commissioner for Competition announcing “a new era of cartel enforcement”, and a series of dawn raids in the months to come.
 See FCA’s press release of November 10, 2021, available at: https://www.autoritedelaconcurrence.fr/fr/communiques-de-presse/le-rapporteur-general-de- lautorite-de-la-concurrence-indique-que-des-2
 A court order is always required when the inspected premises are also used for residential purposes. Therefore, inspections under Article 450-3 of the French Commercial Code (also known as “simple” inspections) can be conducted without a court order but only in business premises. In practice, while these inspections are often used by the General Directorate for Competition Policy, Consumer Affairs and Fraud Control, their use by the FCA is very limited. The FCA’s inspections are usually conducted following receipt of an order from the liberty and custody judge.
 Council Regulation (EC) No 1/2003 of December 16, 2002, on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.
 Ibid, Article 21.
 See also the judgment of the Court of Justice of the European Union of September 14, 2010, Akzo Nobel Chemicals & Akcros Chemicals v. European Commission, (Case C-550/07) EU C 2010 , para. 85: “As it is clear from Recitals 25 and 26 in the preamble to Regulation No 1/2003, the detection of infringements of the competition rules is growing ever more difficult, and, in order to protect competition effectively and safeguard the effectiveness of inspections, the Commission should be empowered to enter any premises where business records may be kept, including private homes.”
 The national judge may not call into question the necessity for the inspection, but should ensure that the inspection is neither excessive nor arbitrary, having regard for the seriousness of the suspected infringement, the importance of the evidence sought, the involvement of the undertaking concerned, and for the reasonable likelihood that business books and records relating to the subject matter of the inspection are kept in the private home.
 Commission decision of January 28, 2009, case COMP/39-406 – Marine Hoses, para. 61.
 Commission decision of November 27, 2013, case AT.39633 – Shrimps, para. 34.
 See British Department for Business, Energy & Industrial Strategy, summary of the public consultation on “Reforming Competition and Consumer Policy”, July 2021, para. 1.174.
 Speech by EVP M. Vestager at the Italian Antitrust Association Annual Conference – “A new era of cartel enforcement”, October 22, 2021.