Article 9
Procedures for a request for cooperation on an on-site inspection or an investigation
1. Where a request for cooperation as referred to in Article 2 concerns the carrying out of an on-site inspection or an investigation, the requesting competent authority and the requested competent authority shall consult each other on the best way to give effect to that request, including on the merits of conducting a joint on-site inspection or a joint investigation.
2. For the purposes of the consultation referred to in paragraph 1, the competent authorities shall take into account all of the following:
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(a) |
the content of the request, including the appropriateness to carry out the investigation or the on-site inspection jointly; |
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(b) |
whether the competent authorities are conducting their own inquiries into a matter with cross-border implications separately, and whether that matter would be more suitably dealt with by joint collaboration; |
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(c) |
the legal and regulatory framework applicable in each of the competent authorities’ jurisdictions, ensuring that both competent authorities have a good understanding of the potential constraints and legal limitations on their conduct and on any proceedings that may follow, including any issues relating to the principle of ne bis in idem and the protection of the rights of the persons subject to the on-site inspection or the investigation; |
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(d) |
the management and direction needed for the investigation or the on-site inspection; |
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(e) |
the allocation of resources and appointment of staff in charge of carrying out the investigation or the on-site inspection; |
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(f) |
the possibility to establish a joint action plan and timings of work; |
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(g) |
the actions to be taken, jointly or individually, by the competent authorities; |
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(h) |
the mutual sharing of the information gathered and reporting on the outcomes of the individual actions taken. |
3. Where the requested competent authority carries out the on-site inspection or the investigation itself as referred to in Article 31(4), point (a), of Regulation (EU) 2020/1503, it shall keep the requesting competent authority informed of the progress of the inspection or investigation and shall deliver its findings in good time.
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(a) |
Competent authorities that decide to carry out a joint investigation or a joint on-site inspection as referred to in Article 31(4), point (b), of Regulation (EU) 2020/1503 shall: |
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(b) |
engage in ongoing dialogue to coordinate the information gathering process and the finding of facts; |
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(c) |
work closely and cooperate with each other when conducting the investigation or the on-site inspection; |
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(d) |
identify the specific legal requirements that form the subject matter of the investigation or the on-site inspection; |
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(e) |
provide mutual assistance on subsequent enforcement proceedings to the extent legally permitted, including coordinating in respect of any proceedings or other enforcement action related to the outcome of the investigation or the on-site inspection or, where appropriate, the prospects of a settlement; |
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(f) |
where relevant, agree upon all of the following: |
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(g) |
the drawing up of a joint action plan specifying the substance, nature and timing of the actions to be taken, including the allocation of responsibilities in delivering the outcome of the work and taking into account each competent authority’s respective priorities; |
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(h) |
the identification and assessment of any applicable legal limitations or constraints and any differences in procedures with respect to investigative or enforcement action or any other proceedings, including the rights of any person subject to investigation; |
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(i) |
the identification and assessment of specific legal professional privileges that may have an impact on the investigation proceedings as well as the enforcement proceedings, including self-incrimination; |
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(j) |
the public and press strategy; |
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(k) |
the intended use of the information exchanged during the joint investigation or joint on-site inspection. |