Short Reads

Qualifying dawn raid documents as 'in scope' or 'out of scope': marginal review by Belgian Court

Qualifying dawn raid documents as 'in scope' or 'out of scope': margi

Qualifying dawn raid documents as 'in scope' or 'out of scope': marginal review by Belgian Court

01.02.2018

On 13 December 2017, the Brussels Court of Appeal rendered a judgment clarifying the qualification 'in scope' and 'out of scope' of documents seized by the Belgian Competition Authority (BCA) during dawn raids at the applicants' (Distripaints NV and Novelta NV) premises. The dawn raids were launched after a complaint by SA Durieu Coatings, which accused both distributors of colluding with its competitor Akzo Nobel.

In an interim judgment of 26 November 2014, the Court imposed a 'verification trajectory' on the applicants and the BCA in respect of documents which 'in scope' character was deemed by the applicants to have been insufficiently motivated by the BCA. In a nutshell, the BCA was requested to provide an additional written statement to justify the seizure of the documents, after which Distripaints would be allowed to respond. In the absence of an agreement between the parties, the Court would decide on whether the documents were 'in scope' or not.

The applicants and the BCA could not agree on whether a number of paper and electronic documents fell within the scope of the investigation or not. Therefore, the Court was asked by the applicants to rule on this point. As revealed in the judgment of December 2017, the applicants went home empty-handed.

At the outset, the Court found that the 'internal' nature of a document was irrelevant in determining its 'in scope' or 'out of scope' character. Nor was it necessary for seized documents to contain an explicit reference to 'Akzo Nobel', or to specific brands. Documents containing information on affected markets or market shares of Durieu's competitors could, at least potentially, be 'in scope'. The Court also dismissed the suggestion that documents post-dating Durieu's complaint were necessarily 'out of scope'.

Importantly, the Court held that it could only conduct a 'marginal' review to ascertain whether the applicants were protected against arbitrary and disproportionate conduct and to guarantee their right of defence. The Court observed that the BCA had supplemented its initial decision with further arguments as to the 'in scope' character, for example, identifying specific passages explaining why a document contained relevant information on commercial strategies or on the affected markets. Since these arguments were not prima facie unacceptable, unreasonable or illegal, the Court concluded that the BCA had duly substantiated that the documents qualified as 'in scope' and dismissed the applicants' claim. The documents thus remain in the file.

In a similar case in the Netherlands, the District Court of The Hague ruled on the Dutch Authority for Consumers and Market's powers to select and inspect digital data following a dawn raid. The Court found that companies may under some circumstances successfully argue that certain documents are 'out of scope' [see our August 2017 Newsletter].

This article was published in the Competition Law Newsletter of January 2018. Other articles in this newsletter:

  1. Dissemination of misleading information on the safety of a medical product can be a "by object" infringement
  2. Highest German Court rules that ASICS's ban on using price comparison websites violates EU competition law

Team

Related news

06.02.2020
The ACM may cast the net wide in cartel investigations

Short Reads - Companies beware: the ACM may not need to specify the scope of its investigation into suspected cartel infringements in as much detail as expected. On 14 January 2020, the Dutch Trade and Industry Appeals Tribunal upheld the ACM’s appeal against judgments of the Rotterdam District Court, which had quashed cartel fines imposed on cold storage operators. The operators had argued that the ACM was time-barred from pursuing a case against them, because the ACM had not suspended the prescription period by beginning investigative actions specifically related to the alleged infringements.

Read more

07.02.2020
Het finale Belgische ‘nationaal energie- en klimaatplan’ en de Belgische langetermijnstrategie: het geduld van de Commissie op de proef gesteld?

Articles - Op 31 december 2019 diende België, nog net op tijd, zijn definitieve nationaal energie- en klimaatplan (NEKP) in bij de Commissie. Het staat nu al vast dat het Belgische NEKP niet op applaus zal worden onthaald door de Commissie. Verder laat ook de Belgische langetermijnstrategie op zich wachten. Wat zijn de gevolgen?

Read more

06.02.2020
CDC/Kemira: Amsterdam Court of Appeal applies European principle of effectiveness to limitation periods

Short Reads - In a private enforcement case brought by CDC against Kemira, the Amsterdam Court of Appeal applies the European principle of effectiveness and rules that claims are not time-barred under Spanish, Finnish and Swedish law. With reference to the Cogeco judgment of the ECJ, the Court considers that claimants must be able to await the outcome of any administrative appeal against an infringement decision, even in relation to respondents who themselves have not filed appeals against the infringement decision.

Read more

06.02.2020
Pay-for-delay: brightened lines between object and effect restrictions

Short Reads - In its first pay-for-delay case, the ECJ has clarified the criteria determining whether settlement agreements between a patent holder of a pharmaceutical product and a generic manufacturer may have as their object or effect to restrict EU competition law. The judgment confirms the General Court’s earlier rulings in Lundbeck and Servier (see our October 2016 and December 2018 newsletters) in which it was held that pay-for-delay agreements (in these cases) constituted a restriction ‘by object’.

Read more

06.02.2020
Consumers and Sustainability: 2020 competition enforcement buzzwords

Short Reads - The ACM will include the effects of mergers on labour conditions in its review. It will also investigate excessive pricing of prescription drugs. As well as these topics, the ACM has designated the digital economy and energy transition as its 2020 focus areas. Companies can therefore expect increased enforcement to protect online consumers, and active probing of algorithms.

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring