Compliance House
Rights and obligations of the company during the investigation
In order to be able to conduct a proper defence against the findings or sanctions imposed by the supervisory authority and to be able to prepare for the investigation, it is important for the company and its employees to be aware of the rights and obligations of the company and the powers of the supervisory authority during the investigation.
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Powers of the supervisory authority
During the investigation, the supervisor is authorised to enter any place, including business premises as well as vehicles and excluding houses, within the framework of a company visit. In doing so, the supervisor is only allowed to look around and not to search. In addition, the supervisor shall be authorised to demand inspection of and the making of copies of business information and documents. This competence does not only relate to paper documents, but also to digital data. Furthermore, the supervisory authorities have the power to demand (factual) information from, for example, employees of the company and to hear them. In general, the principle regarding these powers is that supervisors may exercise their powers to the extent that the exercise of these powers is related to the purpose and scope of the investigation.
Obligations of the company
During the investigation by the supervisory authority, the company has an obligation to cooperate. This means, for example, that you, as a company or its employee, may not refuse the supervisor access to company premises or vehicles or to digital data. If you, as a company, do not cooperate in what the supervisor can reasonably claim, it can lead to sanctions, including an administrative fine. When you intentionally fail to comply with the claim under a statutory regulation of a supervisor, then it may even result in a crime punishable by criminal law.
Company rights
The duty to cooperate is limited by the ‘nemo tenetur’ principle, to which the supervisory authority must draw the company’s attention at the start of the investigation by mentioning the right to remain silent. After all, the starting point is that no one, and thus nor the company, can be compelled to incriminate themselves. In those cases where the provision of information can burden the company, it is not obliged to answer the questions of the supervisor. This principle does not apply to physical written documents. Even if they contain information which may be burdensome for the company, the provision of such information should not be refused.
Another boundary that the supervisor may not cross is the ‘legal privilege’ of the company. The information covered includes all documents originating from a lawyer, correspondence between the lawyer and the company as well as all memoranda of instruction and the lawyer’s detailed opinions. This information is not accessible to the supervisor. The information that is in the possession of the company’s lawyer is not accessible to the supervisor either, since (both internally and externally engaged) lawyers can invoke the right to refuse to give evidence.
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