Short Reads

Belgian Supreme Court confirms illegality of dawn raids due to the lack of a warrant

Belgian Supreme Court confirms illegality of dawn raids due to the la

Belgian Supreme Court confirms illegality of dawn raids due to the lack of a warrant

01.06.2018 NL law

On 26 April 2018, the Belgian Supreme Court held that dawn raids in the travel sector had been conducted illegally as protection offered by the Belgian Constitution is wider than Article 8 of the European Convention on Human Rights (ECHR). As a result, the information unlawfully obtained had to be removed from the case file.

In 2006, the Belgian Competition Authority (BCA) launched a series of dawn raids in the Belgian travel sector. Following the investigation, several travel agents and one association received a statement of objections. However, the Brussels Court of Appeal held on 18 February 2015 that the BCA was prohibited from using any information received during or as a result of the inspections of 2006 because it did not have a judicial warrant authorizing the dawn raids – even though it was not required under the previous Competition Act. In addition, the absence of legal means to contest the lawfulness of the inspections before an independent judge within a reasonable time was deemed to breach Article 6 ECHR. The only remedy available to the Court was to prohibit the BCA from using any information received during or as a result of the inspections.

The judgment, which will potentially affect other investigations as well, constituted a major setback for the newly transformed BCA, which challenged the judgment before the Belgian Court of Cassation. However, the recent judgment of the Supreme Court conclusively dismissed the various objections raised by the BCA. 

In particular, the Court recalled first that while under the ECHR a judicial warrant may not be required in all circumstances, the Court of Appeal was right in holding that the Belgian Constitution could offer a higher level of protection by requiring a warrant. Not surprisingly, the legislator did not wait for the outcome of the case to include the need to obtain a warrant from an independent judge in the new Competition Act of 2013.

Next, the Supreme Court agreed with the Court of Appeal that the consequences of breaches were irreversible and that the information unlawfully obtained had already been integrated in the statement of objections. In the end, the Court of Appeal was right to conclude that the only remedy to undo the negative implications of the breach was to remove the information unlawfully obtained from the case file. 

This judgment is likely to put an end to a saga that has been haunting both the BCA and the travel sector for many years. It also makes clear that documents that are illegally obtained during a dawn raid will have to be removed from the file and that companies must have the time to appeal against such investigation measures.

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

European Court of Justice rules EY did not violate stand-still obligation in Danish merger
European Commission must reassess Lufthansa's request to waive merger commitments
Dutch Appeal Court drastically reduces cartel fine Dutch construction company
District Court of Amsterdam declines jurisdiction in competition law damages case

Team

Related news

03.08.2022 EU law
Gotta catch ‘em all? Upward referral of ‘killer acquisitions’ upheld

Short Reads - Companies involved in intended or completed M&A transactions falling below EU and national merger notification thresholds should beware that their deals may still catch the European Commission’s eye. The General Court has upheld the Commission’s decision to accept a national referral request regarding Illumina’s acquisition of Grail: a transaction not triggering any of the notification thresholds within the EEA.

Read more

06.07.2022 NL law
Highest Dutch court: the postman may still ring twice?

Short Reads - The Dutch Minister of Economic Affairs and Climate Policy was wrong to unblock the ACM’s prohibited merger between postal operators PostNL and Sandd on grounds of public interest. According to the Trade and Industry Appeals Tribunal (CBb), the Minister cannot substitute the ACM’s assessment for its own when considering public interest reasons. Since the Minister did do so in this particular case, the CBb annulled the Minister’s merger clearance.

Read more

28.07.2022 NL law
Purely commercial interest also a legitimate interest? Council of State leaves the question unanswered.

Short Reads - On 27 July 2022, the Council of State confirmed that the Dutch Data Protection Authority wrongly imposed a €575,000 fine on VoetbalTV. But the Council did not answer the question whether the AP rightly or wrongly believes that a purely commercial interest cannot be a legitimate interest within the meaning of the General Data Protection Regulation.

Read more

06.07.2022 NL law
Foreign Subsidies Regulation crosses the finish line

Short Reads - On 30 June 2022, the European Parliament and the European Council reached agreement on the final text of the Foreign Subsidies Regulation. Adding to the regulatory burdens, this Regulation creates a notification obligation for companies that receive subsidies from non-EU governments in transactions or public procurement procedures. 

Read more

28.07.2022 NL law
Zuiver commercieel belang ook gerechtvaardigd belang: Raad van State laat zich er niet over uit

Short Reads - Op 27 juli 2022 heeft de Raad van State bevestigd dat de Autoriteit Persoonsgegevens onterecht een boete van € 575.000 aan VoetbalTV heeft opgelegd. De hoop bestond dat de Afdeling antwoord zou geven op de vraag of de AP terecht of onterecht meent dat een zuiver commercieel belang géén gerechtvaardigd belang kan zijn in de zin van de Algemene Verordening Gegevensbescherming. Het antwoord op deze vraag blijft echter uit.  

Read more

06.07.2022 NL law
Take note(s): Qualcomm’s EUR 1 billion dominance abuse fine quashed

Short Reads - The General Court annulled the Commission’s EUR 1 billion fine imposed on Qualcomm for abuse of dominance on the LTE chipsets market. In addition to finding fault with the Commission’s foreclosure analysis of Qualcomm’s alleged exclusivity payments, the General Court found that the Commission’s procedural irregularities alone would have sufficed to set the Commission’s decision aside.

Read more