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

04.04.2022 EU law
ACM jumps on gun-jumping bandwagon

Short Reads - Companies involved in multi-step acquisitions should beware of potential gun-jumping risks. The Dutch Authority for Consumers and Markets (ACM) has fined a trade association for failing to notify the acquisition of four pharmacies involving a consecutive partial resale. Unlike the European Commission’s gun-jumping fine for partial implementation of a concentration through a ‘warehousing’ two-step acquisition (see our July 2019 newsletter; appeal pending), the ACM’s fine relates to faulty turnover calculations due to an unmaterialized two-step transaction.

Read more

05.04.2022 NL law
Game on for gatekeepers: Digital Markets Act finalised

Short Reads - Now that political agreement has been reached on the final text, the Digital Markets Act (DMA) will enter into force soon. The DMA’s ex ante rules and obligations will apply next to the ad hoc EU and national competition rules. Time for big digital companies to take stock of the potential implications of these additional rules on their day-to-day business operations. See our infographic for a concise overview of the DMA.

Read more

04.04.2022 EU law
The ECN+ Directive implemented in Belgium and introduction of merger filing fees

Short Reads - On 7 March 2022, the Act implementing the ECN+ Directive into Belgian law was published in the Belgian Official Gazette. The Act entered into force on 17 March 2022. Some of the key amendments include (i) the introduction of filing fees for the notification of a concentration, (ii) new fines and penalty payments (including clarifications on the leniency programme), (iii) new dawn raid powers and (iv) the introduction of a regulatory framework for mutual assistance and cooperation within the European Competition Network.

Read more

10.03.2022 EU law
De Dataverordening (“Data Act”)

Short Reads - De Europese Commissie heeft op 23 februari 2022 de Europese dataverordening (“Data Act”) voorgesteld, die het delen van data beoogt te bevorderen. Steeds meer gegevens worden door mensen en machines gegenereerd, bewaard en hergebruikt. Data en data-analyse kan een bijdrage leveren aan de efficiëntie van maatschappelijke processen, onderzoek en innovatie stimuleren en het concurrentievermogen van industrieën versterken. Veel data is echter niet vrij toegankelijk.  

Read more