Nord Pool Consulting AS document of 15 August 2017 “REMIT Best Practice, A sector review on how to comply with REMIT related to inside information and market abuse“ (p. 49, 50) contains the following instructions in case of the “dawn raid” involved with REMIT investigations:
1. instructions for reception desk:
- ask for identification papers from all representatives from the authorities, make copies of the identification papers or note down name and authority they represent,
- immediately notify the person they request to meet and the primary responsible person,
- ask the authorities to wait in the reception until the responsible person arrives (if they disapprove of waiting, do not hinder them from commencing with the inspection),
- if the inspectors disapprove of informing the responsible manager, inform that the company’s routines oblige you to contact the responsible legal counsel or compliance officer, immediately contact this person;
2. instructions for primary responsible person:
- check ID and decision/authorisation (legal basis) issued by the relevant authority,
- check whether you are under inspection or approached as witness,
- request that the inspectors wait to commence the inspection until the attorneys have arrived, if they disapprove of waiting, do not hinder them from commencing with the inspection,
- inform all concerned managers,
- make sure secretarial assistance, meeting rooms and copying facilities are made available for the inspectors,
- instruct everyone concerned by the investigation neither to delete nor destroy any documents, nor to communicate with anyone outside the company regarding the ongoing inspection and to fully cooperate with the inspectors,
- do not let the inspectors walk around unattended,
- ask for a copy of the inspectors’ list of documents, if necessary, make your own list, with the assistance of the owner of the office and a secretary,
- the duty to explain only applies to specific and concrete information, if you are uncertain or do not remember certain facts, it is important to make this clear to the inspectors (avoid speculations, assessments and assumptions, negligently providing incorrect information may be a criminal offence),
- do not sign the protocol of the deposition before it has been carefully reviewed with your legal advisor (if points are missing or it does not give a correct and accurate picture, request amendments or corrections).
It is noteworthy that the correspondence with external legal advisors represents legally privileged documentation that should be kept away from the inspectors (until a legal advisor is present and can make an assessment).
Special consideration should be given to the cases where an answer would reveal an illegal action.
Given that no-one is obliged to contribute to his/her own incrimination, the above Nord Pool Consulting AS document of 15 August 2017 suggests in such a case to invoke (after consulting the legal advisor) the principle of self-incrimination and state that:
- the question is self-incriminating, and
- there is no duty to answer.
If the inspectors do not relinquish the question and insist on it, the aforementioned Nord Pool Consulting AS document of 15 August 2017 recommends to made a request that it is noted in the protocol that the answer was submitted under the threat of criminal prosecution (which may influence on the value of such an evidence).
The above Nord Pool Consulting recommendations can be assessed as very useful. Nevertheless multiple further best practice instructions may be considered.
Among them the special importance should be given to the need to copy every document - no matter its form - transmitted to the inspectors on their request.
Such copies should be retained and evidenced.
Such copying may sometimes appear burdensome and require the participation of, for example, IT departments (hard disks etc.), but occurs extremely useful in further procedures.
It needs to be reserved, finally, that different rules may apply in different jurisdictions that may affect the above instructions.
REMIT Regulation (Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency)
REMIT Best Practice, A sector review on how to comply with REMIT related to inside information and market abuse, Nord Pool Consulting AS, 15 August 2017