Art. 23 Powers to conduct inspections | DMA regulation | DMA

This is a detailed article granting the Commission broad on-site inspection powers over undertakings and associations of undertakings.

It covers the full lifecycle of an inspection: the powers available to Commission officials on the ground, the cooperation required from inspected parties, the role of national competent authorities and national judicial authorities, and what happens when an undertaking resists.

The article connects closely to Article 30 and Article 31, as fines and periodic penalty payments are explicitly referenced as consequences for obstructing or providing misleading information during an inspection.

It also links to Article 26(2), which governs the appointment of auditors and experts who may assist during the process.

Important points:

Undertakings and associations of undertakings are required to submit to Commission inspections, including granting access to premises, records, IT systems, algorithms, and data-handling practices, and must not obstruct or provide incorrect or misleading information.
The Commission must produce a written authorisation before exercising inspection powers, and must notify the relevant national competent authority in good time before the inspection takes place.
National judicial authorities may review whether coercive measures are arbitrary or excessive, but may not call into question the necessity of the inspection itself — the lawfulness of the Commission decision is subject to review only by the Court of Justice.

1. In order to carry out its duties under this Regulation, the Commission may conduct all necessary inspections of an undertaking or association of undertakings.
1. The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered to:
  1. enter any premises, land and means of transport of undertakings and associations of undertakings;
  2. examine the books and other records related to the business, irrespective of the medium on which they are stored;
  3. take or obtain in any form copies of or extracts from such books or records;
  4. require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business practices and to record or document the explanations given by any technical means;
  5. seal any business premises and books or records for the duration of, and to the extent necessary for, the inspection;
  6. ask any representative or member of staff of the undertaking or association of undertakings for explanations of facts or documents relating to the subject-matter and purpose of the inspection, and to record the answers by any technical means.
1. To carry out inspections, the Commission may request the assistance of auditors or experts appointed by the Commission pursuant to Article 26(2), as well as the assistance of the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted.
1. During inspections the Commission, auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts. The Commission and auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may address questions to any representative or member of staff.
1. The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the fines provided for in Article 30 applicable in the event that the production of the required books or other records related to the business is incomplete or where the answers to questions asked under paragraphs 2 and 4 of this Article are incorrect or misleading. In good time before the inspection, the Commission shall give notice of the inspection to the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory it is to be conducted.
1. Undertakings or associations of undertakings are required to submit to an inspection ordered by a Commission decision. That decision shall specify the subject matter and purpose of the inspection, set the date on which it is to begin and indicate the fines and periodic penalty payments provided for in Articles 30 and 31 respectively, and the right to have that decision reviewed by the Court of Justice.
1. Officials of, and the persons authorised or appointed by, the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted shall, at the request of that authority or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission. To this end, they shall enjoy the powers set out in paragraphs 2 and 4 of this Article.
1. Where the officials and other accompanying persons authorised by the Commission find that an undertaking or association of undertakings opposes an inspection ordered pursuant to this Article, the Member State concerned shall afford them the necessary assistance, requesting, where appropriate, the assistance of the police or of an equivalent enforcement authority, so as to enable them to conduct their inspection.
1. If, according to national rules, the assistance provided for in paragraph 8 of this Article requires authorisation from a judicial authority, the Commission or the national competent authority of the Member State enforcing the rules referred to in Article 1(6) or officials authorised by those authorities shall apply for it. Such authorisation may also be applied for as a precautionary measure.
1. Where authorisation referred to in paragraph 9 of this Article is applied for, the national judicial authority shall verify that the Commission decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national judicial authority may ask the Commission, directly or through the national competent authority of the Member State, enforcing the rules referred to in Article 1(6), for detailed explanations in particular on the grounds the Commission has for suspecting infringement of this Regulation, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned. However, the national judicial authority may not call into question the necessity of the inspection nor demand that it be provided with the information in the file of the Commission. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice.